State v. Vasquez-Santiago

90

Argued and submitted March 9, 2017; resubmitted en banc October 16, 2018;

reversed and remanded December 4, 2019

STATE OF OREGON,

Plaintiff-Respondent,

v.

ELOY VASQUEZ-SANTIAGO,

Defendant-Appellant.

Washington County Circuit Court

C122203CR; A159499

456 P3d 270

Defendant appeals a judgment of conviction for murder, arguing that the trial

court erred in admitting evidence of confessions he made during two separate

police interrogations. In those interrogations, the police communicated to defen-

dant—who is an illiterate, immigrant man with significantly subaverage intel-

lectual functioning—that three members of his family, including his nursing,

infant son, were in custody and that his entire family was suffering as a result

of that custody. Moreover, as defendant argues, the police also communicated

that the key to securing his family members’ release and ending their suffer-

ing was for defendant to confess to the murder. In defendant’s view, a confession

obtained under those circumstances is involuntary and therefore inadmissible

under Oregon law. The state argues that defendant’s confession was voluntary.

Held: In keeping with the recent decision in State v. Jackson, 364 Or 1, 430

P3d 1067 (2018), the Court of Appeals concluded that the police communi-

cated inducements to defendant through both threats and promises. The police

had failed to tread cautiously around the subject of familial relationships—

particularly, defendant’s parental attachment to his infant son. The parent-child

bond is so visceral that, in this case, its use as a point of leverage in the inter-

rogations rose to the level of improper inducements sufficient to undermine the

reliability of defendant’s confession. Moreover, as in Jackson, the state failed to

demonstrate that, under the totality of the circumstances, defendant’s will was

not overborne by those inducements. Thus, defendant’s confessions were invol-

untary, and the trial court erred in denying defendant’s motion to suppress the

confessions.

Reversed and remanded.

En Banc

Donald R. Letourneau, Judge.

Mary M. Reese, 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.

Cite as 301 Or App 90 (2019) 91

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 Egan, Chief Judge, and Armstrong, Ortega,

DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi,

and Powers, Judges, Hadlock and Garrett, Judges pro

tempore.

JAMES, J.

Reversed and remanded.

Garrett, J. pro tempore, dissenting.

92 State v. Vasquez-Santiago

JAMES, J.

Few things are more powerful than the familial

bonds that tie us together—especially the bonds of love and

protection that a parent has for his or her child. When those

bonds are used as a pressure point to induce a confession to

a crime, there is a risk: Was the confession a product of free

will, or the result of an inducement of hope or fear such as to

render the confession unreliable? That question, and how a

court goes about arriving at an answer, is the essence of this

case.

Defendant appeals a judgment of conviction for

murder, arguing that the trial court erred in admitting

evidence of confessions he made during two separate police

interrogations. In those interrogations, police communi-

cated to defendant—an illiterate, immigrant man with

an IQ of 53, a number associated with mental retardation

and significantly subaverage intellectual functioning—that

three members of his family, including his infant son, were

in custody, that his entire family was suffering as a result,

and that the key to securing the family members’ release

and ending that suffering was for defendant to confess to

the murder. In defendant’s view, a confession obtained under

those circumstances is involuntary and therefore inadmissi-

ble under Oregon law.

In light of the Oregon Supreme Court’s decision in

State v. Jackson, 364 Or 1, 430 P3d 1067 (2018), we agree

with defendant. For the reasons explained below, we con-

clude that, as in Jackson, police communicated inducements

to defendant through both threats and promises and the

state failed to demonstrate that, under the totality of the

circumstances, defendant’s will was not overborne by those

inducements. We accordingly reverse and remand.1

BACKGROUND

The relevant facts are undisputed. The victim, a

56-year-old woman who worked with defendant as a field

worker at a berry farm, left home one morning in August

1

Defendant also challenges the restitution award of $3,030 imposed at sen-

tencing. In light of our resolution of defendant’s first assignment of error, we need

not reach that issue.

Cite as 301 Or App 90 (2019) 93

2012 after talking to defendant on the phone. When she did

not return, her daughter notified the police.

Defendant was quickly identified as a suspect in the

victim’s disappearance. Detective LaMonica learned that

defendant lived in Woodburn with his family, including his

father, Benito; his brother, Moises; his “common-law wife,”

Jacinta; his infant son; his mother; and his two sisters.

Defendant, however, had abruptly left the Woodburn house

and taken his wife, the baby, his father, and his brother with

him. LaMonica’s investigation connected the family with

an address in Madera, California. In late September, a few

weeks after the victim’s disappearance, LaMonica traveled

to California with Detective Ganete.

Meanwhile, defendant’s father and brother had

been arrested on unrelated local charges in California.

After arriving in California, the detectives made contact

with defendant’s father and brother at the police station.

His father and brother informed the detectives that, on the

morning of the victim’s disappearance, defendant had taken

his father’s van without permission, saying that he was

going to see his “girlfriend.” When defendant returned later

that day, his father and brother observed blood on his hands

and on both the inside and outside of the van. According

to his father and brother, defendant told them that he had

become upset with the victim and hit her, and that they had

to “run.” The men explained that, after the family arrived

in California, defendant left them and continued on alone to

Mexico. From there, defendant called his father and brother

and said that he had killed the victim by stabbing her.

The detectives next visited defendant’s wife and

inquired about defendant’s whereabouts. They left their

contact information with her and began the return trip to

Oregon. Defendant’s father and brother were still in jail in

California on the local charges.

While the detectives were traveling back to Oregon,

defendant, who had evidently been contacted by his wife,

called Ganete and expressed concern that defendant’s

father, brother, and infant son were in police custody. As

Ganete made clear in his testimony, defendant’s reason for

94 State v. Vasquez-Santiago

contacting police was to secure the release of his family,

including his infant son:

“[PROSECUTOR]: Detective Ganete, when the defen-

dant first called you, what did he say he wanted from you?

“[GANETE]: He wanted his father, his brother, his son

released from police custody.”

The roadside telephone conversation between defen-

dant and the detectives occurred in Spanish, as did the

police interactions with defendant that followed. Although

defendant’s son had never been detained, Ganete did not

correct defendant on that point. Ganete said that he wanted

to talk to defendant about the victim and he advised defen-

dant to turn himself in at the California-Mexico border.

Defendant replied, “I want you to go leave the little boy with

his mom, because he’s breast feeding, and let my dad go.”

Again, the detective did not correct defendant’s belief that

the infant was detained and separated from his mother.

Rather, Ganete responded, “I can’t make that kind of a deal

until I talk to you in person. I don’t make deals on anything,

because I’m not in a position to make deals.” At the end of

the conversation, defendant agreed to turn himself in, but

he continued to request that Ganete release his son.

The next day, defendant turned himself in at the

border. When he was finally able to cross the border, defen-

dant immediately notified the local authorities in San

Ysidro, California, that he was seeking the release of his

infant son.

LaMonica and Ganete interrogated defendant in

the San Diego county jail beginning at 10:00 p.m. The inter-

rogation lasted until approximately 12:45 a.m. It began with

Ganete reading defendant his Miranda rights, which defen-

dant acknowledged understanding. Defendant said that he

knew that he was a suspect in the victim’s disappearance

and that the police “took” his father, brother, and infant son

for that reason. Defendant explained that he had turned

himself in because of the choice police had given him regard-

ing his “defenseless baby.” He also reiterated his belief that

the baby was still at an age that he needed to be breast

fed:

Cite as 301 Or App 90 (2019) 95

“[DEFENDANT]: * * * [T]hey think that I’m suspect

* * * of these and that’s why they’re detaining him.

“[GANETE]: Uh-huh.

“[DEFENDANT]: My baby is now about—he was born

in April. He was born in April. I don’t know if he’s only five

or six months old. And he is still breast feeding.

“[GANETE]: Okay.”

The detectives did not correct defendant’s misun-

derstanding that his son was detained. Rather, again, they

reinforced defendant’s misconception and explicitly adopted

it as their own version of events. When defendant said that

his wife had reported that the police “detained my dad, my

brother and my son,” Ganete replied, “Yes. Uh huh, exactly.

They are in custody for now.”

As the interrogation proceeded, defendant denied

killing the victim and continued to express concern for his

infant son, as well as for his father and brother. Ganete,

meanwhile, referred to defendant’s family and their “suffer-

ing” in exchanges with defendant. Ganete stated, “I don’t

want your family to * * * suffer for something that I know

you are responsible for. I don’t want the other family to suf-

fer from not knowing where their family’s body is. I don’t

know where the body is.”

Ganete explained to defendant that, unless he could

recover the victim’s body, defendant’s father and brother

would be detained because “they are witnesses that, that

have to go to the court and say, ‘[Defendant] told me that he

killed her.’ Your dad has to testify and [your brother] has to

testify.” Ganete later stated,

“I believe that in your heart you want to settle this. You

don’t want to leave it like this—a mess. You—I believe

your dad and your mom and your family don’t deserve this,

because everyone is suffering right now.

“* * * * *

“One family has a dead relative and they don’t know where

she is and they’d at least like to give this woman a decent

burial. And I have another family—

“* * * * *

96 State v. Vasquez-Santiago

“—suffering over their son, that they want their son to

tell the truth so the family can have peace. I have two fam-

ilies and you are the key to this.”

Ganete told defendant that, unless he “told the

truth,” his father and brother would remain key witnesses

in the case, but that if defendant confessed, his father’s

and his brother’s testimony would become less important.

Defendant then discussed a possible deal with the detec-

tives, in which he would confess in exchange for his family’s

release:

“[DEFENDANT]: * * * When are you going to let my

family go?

“[GANETE]: I can’t let your family go until I find that

body. And not until I get the truth from you. Because they

are the only witnesses who can say what you told them.

“[DEFENDANT]: I want to assure you of one thing.

“[GANETE]: Tell me.

“[DEFENDANT]: If you . . . let my family go right now

and I will tell you the truth. Just like I told you there, I’ll

tell you here. I’m sincere.

“[GANETE]: You’re telling me that if I—what you’re

telling me is if your dad and brother get out of jail—

“[DEFENDANT]: And my son.

“[GANETE]: —and your son, you will tell me where

the body is and everything that happened.

“[DEFENDANT]: Yes.

“[GANETE]: You will take me exactly to where it is,

where, where you dumped the body.

“[DEFENDANT]: If you take me there to my family. I

want to see that they are free and I will go with you.

“[GANETE]: Okay. The problem is that, uh—

“[DEFENDANT]: There you have it.

“[GANETE]: The problem is that—

“[DEFENDANT]: I know that this—

“[GANETE]: They are my key witnesses.”

(Ellipsis in original; emphases added.)

Cite as 301 Or App 90 (2019) 97

Ganete, who was speaking with defendant in Spanish,

then brought LaMonica into the exchange:

“[GANETE]: Let me tell Detective LaMonica what

you’re telling me. So he’s saying he will take us to the body

and tell us everything that happened if his father and his

brother go free.

“[LAMONICA]: You want me to—

“[DEFENDANT]: The baby.

“[LAMONICA]: You want me to tell him and you can

translate?

“[GANETE]: Absolutely.

“[LAMONICA]: Okay, Uh, okay, [defendant], thank

you. The family needs this, okay?

“[DEFENDANT]: Baby.

“[LAMONICA]: Your, your baby needs this.

“[GANETE]: Your family needs this.

“[LAMONICA]: Your baby needs his grandpa. We can-

not make you any promises, we’re not allowed to.

“[GANETE]: We can’t make, make you promises

because we—the law doesn’t allow us to make promises.”

(Emphases added.)

LaMonica proceeded to explain that “they’re in

custody because they know the facts, and nobody else does,

other than—we know what they’re telling us,” and that

“until we can verify those facts[,] whether it be through you

or through finding the body or both[,] then we have to keep

them in custody[,] so we can proceed with, with the case.”

LaMonica explained that he did not “have any problems,

uh, asking the DA’s office to, uh, let them be released from

custody, if we can find the body, and if we can, and, and if

you can be, uh, truthful about what happened. * * * But I

can’t promise you that, but I will do my best to make that

happen.” The detectives then addressed the need for defen-

dant’s father and brother to be released to support defen-

dant’s family:

“[GANETE]: And we know that it’s very important

that your dad and brother work because they are the ones

98 State v. Vasquez-Santiago

who support the family and I know that’s important to

you and to the family. And that is the, the perspective of

Detective LaMonica. He is the primary investigator in this

case. Of course I am helping do the interviews in this case

but, uh, let me say something. I know that what you’re, uh,

proposing and I know that you’re doing this for your family.

I understand.”

On multiple occasions, Ganete pointed out the lim-

its of his ability to negotiate. He told defendant that “[a]s

detectives we don’t have, uh, neither the responsibility nor

the power under the law to make a deal with someone ‘if you

do this, I’ll do that’ and so on. What we can do is, uh, pass

the information on to the person who makes the decisions on

this case.” He and defendant then discussed the leverage—

or, in defendant’s words, “the little hook”—that the police

had:

“[GANETE]: * * * Uh, what we know is that your dad

and your brother are key witnesses in this case. And they

are less key if we validate the information they gave us

through you. That means that if you tell me exactly what

happened and tell me exactly where, where I can find that

woman, then they aren’t so critical to this case because it

comes straight from you. But if I don’t hear anything out

of your mouth, nothing comes from you, they are the key

people who can say—

“[DEFENDANT]: The little hook.

“[GANETE]: Yes, exactly.

“[DEFENDANT]: Yes.

“[GANETE]: They are the hooks of the case. And the

way you release that hook is if you take the responsibility

of saying, ‘well, uh, I’ll tell what it is, I’ll tell you what hap-

pened’ and his testimony, theirs, won’t have the same value

as your testimony, and that’s why the hook, that hook’s not

to—

“[DEFENDANT]: Also to pull me.

“[GANETE]: Yes. Exactly. Just as you want the hook

with me—

“[DEFENDANT]: Uh-huh.

“[GANETE]: —that if I don’t give you—if your father

and your brother aren’t freed—

Cite as 301 Or App 90 (2019) 99

“[DEFENDANT]: No—

“[GANETE]: —you are not going to tell me—”

The detectives later repeated that they lacked

authority to negotiate, stating that “my hands are tied to [a]

certain point because I—we are detectives, we are not judges

or district attorneys who take the cases and go to court and

so on.” Ganete then had this exchange with defendant:

“[GANETE]: * * * Now the—for us it’s, uh, as import-

ant for your family and for everyone that knows—knows

the truth. You know that if the truth comes forward, all will

be freed. The family will be freed from being able to find its

relative and to be able to give her a proper burial; your fam-

ily will be freed because like—to use your word—the hook

in this case which is your dad and [brother] is not so criti-

cal because things come straight from your mouth. For you,

it’s having that personal freedom about what happened—

Because this is something you can’t live with in your heart

your whole life. You can’t live with this. Absolutely not.

Absolutely not. You have to free yourself of that. The truth

will solve this case for everyone. Like you asked me, as

an officer what do I gain by this? I gain bringing peace to

everyone, to the whole family, closing a case, you go on with

your life, that family to have peace, your family to be able

to go on living so that your child can get ahead, your wife

can get ahead and we can fulfill—spread the benefit of the

truth among everyone. And [defendant], only you have the

key. Why kid ourselves? Here. It, it—I don’t know how I can

explain it any clearer than this.

“[DEFENDANT]: Yes, but I want my family to be free.

“[GANETE]: And me too. Your family are cool peo-

ple. I, I really liked talking to your dad and your brother.

I met your mom, * * * I met your whole family. And do you

believe I—do you think I have the pleasure and I enjoy

watching a family suffer? I don’t think you think that of

me because I’ve shown you I’m not that kind of person.

To the contrary, I’ve constantly shown you that all this is

to benefit your family and everyone from all angles. So this

is not something that, that the police take a great satisfac-

tion [in] bringing trouble to your family and have them all

suffer.”

(Emphases added.)

100 State v. Vasquez-Santiago

Ganete further stated that defendant’s father and

brother “didn’t tell me everything” and that “I know there’s

a part you didn’t tell them. And that is the part you have

that frees all, everyone. But that freedom, that decision is

yours.” Later, the detective stated, “I don’t want to see your

family suffer any longer. * * * Because that’s not right and

you know that it’s not right. Not for you or the other fam-

ily, or for your mother or your father or no one. We have

to stop the suffering. And you have to have peace in your

heart.”

Twice more the detectives stated that, although

they lacked the authority to agree to release defendant’s

family, they would report the details of the interrogation

to the prosecutor, including whether defendant had cooper-

ated, and that a confession would benefit defendant’s family:

“[GANETE]: * * * Simply, I can’t make promises to

you but I will tell you that I will fight as hard as I can to

indicate in my report and to put in black and white that

you were honest with me, you have told the truth, and that

you’ve cooperated with the police and that you made a huge

effort to come from Tijuana and turn yourself in—

“[DEFENDANT]: Uh-huh.

“[GANETE]: —that you take responsibility for what

happened and that you are a straight, sincere person and

have taken responsibility for what happened. That’s what

I want to put in my report. That’s what I want to show the

district attorney and show everyone who reads my report,

that you are a man who made a mistake[.]

“* * * * *

“[LAMONICA]: The more responsibility you accept,

the, the more cooperation you are helping, helping the fam-

ily have closure, helping your family have closure[.]

“* * * * *

“[LAMONICA]: * * * [E]very day that she is out there

is another day that your dad and [your brother] are in jail

and not able to support your family.

“* * * * *

“[GANETE]: * * * [E]ach day we are not able to close

this case in the sense of not knowing the details and how

Cite as 301 Or App 90 (2019) 101

it all happened is one more day that your dad and [your

brother] have to be in jail because we, we aren’t able to free

this. And of course the sooner we can free this case and

come to the conclusion of what happened the sooner I can

move this case forward[.]”

After defendant questioned whether a proposed

deal could be unwound because of “lies,” Ganete explained:

“Oh, what you’re asking me is if you, if you are truthful

with me—

“[DEFENDANT]: Uh-huh.

“[GANETE]: —that we won’t do anything to release—

“[DEFENDANT]: Uh-huh.

“[GANETE]: —your dad and your mom, well—sorry,

your family. Oh, no. Because like I told you, uh, I’m not in

the position to make this kind of deal.

“[DEFENDANT]: Uh-huh.

“[GANETE]: What I can do—

“[DEFENDANT]: Yes, yes, yes—

“[GANETE]: What I can do—

“[DEFENDANT]: Yes, you told me, uh-huh.

“[GANETE]: I can fight for that, [defendant]. Like I say

in the way I present the information—

“[DEFENDANT]: Uh-huh.

“[GANETE]: —is that I’m going to put exactly what

you and I talked about in my report.

“[DEFENDANT]: Uh-huh.

“[GANETE]: And I put in my report your effort to

cross the border, the conversations we’ve had, your hon-

esty with me, the exact details of what happened so I can

show—I want to show in my report what kind of person you

are. And I want to put in my report your wish to have your

mom, your dad, you brother, for your family to be free and

for them to not be responsible for something they didn’t do.

And I want to put that in my report.

“[DEFENDANT]: Uh-huh.

102 State v. Vasquez-Santiago

“[GANETE]: And the way I can put all these things in

my report is if you and I have an honest conversation.”

(Emphasis added.)

As the interrogation continued, defendant admitted

to seeing the victim on the day of her disappearance but

denied killing her. Ganete replied that, because he believed

that defendant was being untruthful, the detectives would

end the interview and tell the prosecutor that defendant was

being uncooperative. Defendant then confessed to murder-

ing the victim by stabbing her. He then immediately asked

for the release of his baby, father, and brother: “I killed her

but I want you to let my son and dad go. * * * And my brother.

* * * I want them to be free.” Less than 24 hours later, the

detectives interviewed defendant again for five minutes and

defendant affirmed his confession. Defendant was indicted

for murder.

Defendant later moved to suppress the evidence

from both police interrogations on the ground that his con-

fessions were involuntary. After a hearing on the suppres-

sion motion, the trial court made the following findings:

“The defendant is fluent in Spanish. Detective Ganete

is fluent in Spanish. All the interrogation was in Spanish.

There were no communication problems. The interview

was polite in tone throughout.

“The defendant is a Mexican citizen. He has worked as a

migrant worker in Oregon. He has an IQ of 53 and no edu-

cation. His limited IQ and lack of education did not impede

his interaction with the detectives. He was not suffering

any psychosis during his interactions with the detectives.

Although the defendant had slept little in the proceeding

[sic] days, he did not manifest any drowsiness during the

interrogation. The defendant was not under the influence

of any intoxicants.

“* * * * *

“[T]he defendant repeatedly voiced his concern that his

child, father, and brother were in custody. The transcripts

reflect over ten times in which the defendant referred

expressly to his concerns about his son being in custody.

Detective Ganete did not believe the child was in custody,

but never corrected the defendant’s misunderstanding.

Cite as 301 Or App 90 (2019) 103

Rather on one occasion he affirmatively agreed with the

defendant’s statement that the child was in custody. * * *

“In his exchanges with defendant, Ganete focused on

the custody status of the brother and father rather than

referencing the child.

“The defendant consistently tried to negotiate that he

would give a full statement regarding the incident in return

for his family being released from custody. The detectives

time after time told the defendant that they could not make

such a deal, but that they would report his cooperation to

the prosecutors in an effort to get the brother and father

released from custody.

“* * * * *

“The defendant confessed because of his subjective hope

that his cooperation would lead to the release from custody

of his son, father, and brother.”

The trial court also reached the following legal

conclusions:

“* * * Ganete’s failure to correct the defendant’s misconcep-

tion that his son was in state custody as well as the detec-

tive’s affirmation of the misconception constitutes police

deception.

“* * * * *

“Here the police never made a promise that defendant’s

cooperation would lead to the release of the son or the adult

relatives from custody. They did make a permissible prom-

ise that they would forward defendant’s cooperation to the

prosecutors and attempt to secure the release of the adult

relatives.

“* * * * *

“The defendant confessed because of his subjective hope

that his cooperation would lead to the release from custody

of his son and his adult relatives.

“Under the totality of the circumstances, the defen-

dant’s statements were the product of an essentially free

and unconstrained choice. Defendant’s free will was not

overborne and his capacity for self-determination was not

critically impaired.”

The trial court denied defendant’s motion to sup-

press and his confessions were admitted as evidence at trial.

104 State v. Vasquez-Santiago

The jury found defendant guilty of murder. Defendant now

appeals the resulting judgment of conviction, assigning

error to the denial of his motion to suppress the confession,

which he argues was involuntary under ORS 136.425(1)2

and Article I, section 12, of the Oregon Constitution.3 While

this case was under advisement, the Oregon Supreme Court

issued its opinion in Jackson. As a result, we asked the par-

ties to rebrief the arguments in light of Jackson’s analysis.

The briefing provided by both parties has been valuable in

helping us approach the issues in this case.

According to defendant, the detectives engaged in

conduct that, under the totality of the circumstances, ren-

dered his confession unreliable as a matter of law. Specifi-

cally, defendant argues:

“As the trial court found and as supported by the record,

the detectives deceived defendant into believing that his

son was in custody and, given the circumstances, defen-

dant’s belief was reasonable. The detectives then made an

implied promise: the detectives would release or, at least,

work hard to release defendant’s son if defendant stopped

‘lying’ and confirmed what the detectives already knew

about the case. Defendant directly responded to that prom-

ise and confessed in the hopes of securing the release of his

son.”

That is, in defendant’s view, a confession induced by that

type of deceptive coercion is involuntary, even if the detec-

tives hedged as to whether they could personally negotiate

the infant’s ultimate release.

The state, in response, argues that the underlying

premise of defendant’s argument is wrong: There was no

inducement or promise. According to the state, in light of the

detectives’ repeated clarifications about what they could and

could not promise, defendant knew that he was not being

offered anything in exchange for his confession. Thus, the

state argues, defendant’s claim of error “fails because it is

2

ORS 136.425(1) provides that “[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.”

3

Article I, section 12, provides that “[n]o person shall * * * be compelled in

any criminal prosecution to testify against himself.”

Cite as 301 Or App 90 (2019) 105

based on the factually incorrect premise that the detective

offered defendant a quid pro quo.” In any event, the state

argues, police deception is only one factor that should be

considered under the totality of the circumstances. In the

state’s view, “the officers did not make any threats regarding

defendant’s child, and furthermore, the mere fact that the

child was in state custody did not equate to a threat [of] the

child’s health and safety.” Rather, “[d]efendant attempted to

negotiate a deal for the release of his family, and the officers

indicated that they could not make promises but would pass

any information about his cooperation to the district attor-

ney. That did not render defendant’s confession involuntary.”

ANALYSIS

As noted at the outset, the Oregon Supreme Court’s

recent decision in Jackson, provides the framework for our

analysis of the parties’ competing arguments under Article I,

section 12, and ORS 136.425(1). In Jackson, the court

explained that “both the statute and Article I, section 12

embody the common-law rule that confessions made by a

defendant in custody that were induced by the influence of

hope or fear, applied by a public officer having the prisoner

in his charge, are inadmissible against the defendant.” 364

Or at 21 (internal quotation marks omitted); see State v.

Powell, 352 Or 210, 218, 282 P3d 845 (2012) (“the statute

encompasses the common law and thus applies to confes-

sions induced by promises of leniency as well as by threats”);

State v. Wintzingerode, 9 Or 153, 163 (1881) (“There seems

to be no conflict among the numerous authorities as to the

rule, that confessions made by a prisoner while in custody,

and induced by the influence of hope or fear, applied by a

public officer having the prisoner in his charge, are inad-

missible in evidence against him.”); see also State v. Smith,

301 Or 681, 690, 725 P2d 894 (1986) (“We know of no case

that interprets or applies ORS 136.425 independently of the

common-law rules on confessions and admissions.”).

To protect a defendant’s core statutory and constitu-

tional right to be free from compelled self-incrimination, an

out-of-court confession is presumed to be involuntary and,

thus, inadmissible. Jackson, 364 Or at 21; see also Powell,

352 Or at 225-26 (“It is well established that confessions

106 State v. Vasquez-Santiago

are initially deemed to be involuntary and that the state

has the burden to overcome that presumption by offering

evidence affirmatively establishing that the confession was

voluntary.”). For a court to admit a defendant’s out-of-court

confession against the defendant at trial, the state bears

the burden of proving that the confession was voluntary. Id.

Thus, it is not defendant who must prove that his will was

overborne. Id. at 21-22. Rather, the opposite—it is the state

that must prove that “defendant’s free will was not over-

borne and his capacity for self-determination was not crit-

ically impaired, and that he made his statements without

inducement from fear or promises.” Jackson, 364 Or at 22

(emphases added).4

One of the core rationales for this longstanding

rule prohibiting the evidentiary use of confessions produced

by inducements is to ensure that criminal convictions are

based on reliable evidence and, accordingly, are themselves

reliable: “ ‘As our cases consistently have recognized, con-

fessions are unreliable when rendered under circumstances

in which the confessor perceives that he or she may receive

some benefit or avoid some detriment by confessing, regard-

less of the truth or falsity of the confession.’ ” Id. at 23 (quot-

ing Powell, 352 Or at 222).5 Although “mere adjurations” to

4

That focus is the primary differentiator between the majority and the

dissent. The dissent approaches this case by placing the burden, incorrectly, on

defendant. As the dissent concludes, “It follows that, if the psychological pressure

on a suspect is in place before the interrogation begins, and if a defendant none-

theless has the capacity to make a valid waiver of his Miranda rights, then the

ordinary tactics of persuasion that police employ during the ensuing interroga-

tion should not be a basis for concluding that defendant’s capacity was lost. Under

such circumstances, it should be harder—not easier—to show that a confession

was caused by an unlawful police inducement.” 301 Or App at 132 (Garrett, J. pro

tempore, dissenting). But it is not defendant’s burden to prove the confession was

“caused by an unlawful police inducement.” Rather, the confession is presumed

involuntary. It is the state’s burden to prove the confession was not the product of

an unlawful inducement.

5

The dissent is concerned with whether an inducement existed before the

police became involved. See 301 Or App at 119 (Garrett, J. pro tempore, dissent-

ing) (“If that was the pressure that drove defendant to confess, then it is difficult

to conclude that the confession was ‘induced’ by the police, as that pressure was

being exerted on defendant before he met with the detectives.” (Emphasis in orig-

inal.)). The dissent’s concern is misplaced.

In Powell, interpreting Oregon’s statutory prohibition against involuntary

confessions, the Oregon Supreme Court made clear that police inducement is not

required:

Cite as 301 Or App 90 (2019) 107

tell the truth typically do not constitute inducements for

purposes of this analysis, communications “that convey[ ] to

a defendant the idea of a threat or a promise” do. Id. at 24

(relying on Wintzingerode, 9 Or at 163).

The court’s decision in Jackson did not establish a

hard-and-fast test for evaluating whether the state has met

its burden in a given case. However, it did identify a useful

approach, explaining that it is “helpful to begin with the

issue of whether the officers who interrogated defendant

induced him to make admissions by the influence of hope or

fear.” Id. at 22. If so, the next question is whether the state

has demonstrated that, in view of the totality of the circum-

stances, the defendant’s admissions were nonetheless the

product of the defendant’s free will. Id. at 27-28. The “total-

ity of the circumstances” subject to examination includes

the individual characteristics and circumstances of the

defendant, in addition to the circumstances of the interro-

gation. Id. at 28. The ultimate question of whether the state

has demonstrated that a confession was voluntary is one

of law for the reviewing court, although an appellate court

examining whether a confession was voluntary is bound by

the implicit and explicit factual findings of the trial court, if

those findings have evidentiary support. Id. at 21-22.

Applying that same approach here, we conclude that

the state failed to demonstrate the voluntariness of defen-

dant’s confessions. As noted above, our review is circum-

scribed by the trial court’s factual findings, two of which are

particularly pertinent under the totality of these circum-

stances. The first is that defendant’s IQ was 53. A score that

low, courts have routinely observed, has been associated

with mild mental retardation and significantly subaverage

“We decline the state’s invitation to read ORS 136.425(1) to pertain only to

confessions induced by and made to state actors. The text of the statute does

not require that interpretation, our case law consistently has made no such

distinction, and such a distinction would undermine the purpose of the stat-

ute. Consequently, we hold that ORS 136.425(1) continues to apply to confes-

sions induced by and made to private parties.”

352 Or at 222-23. Although Jackson primarily focuses on the voluntariness of

confessions in a constitutional framework, Jackson appears to interpret Article I,

section 12, and the statute congruently. Accordingly, the source of the induce-

ment is immaterial. The question, rather, is whether the presence of an induce-

ment renders the confession unreliable.

108 State v. Vasquez-Santiago

intellectual functioning. State v. Agee, 358 Or 325, 342, 364

P3d 971 (2015), adh’d to as amended, 358 Or 749, 370 P3d

476 (2016) (describing IQ range of 50-55 and approximately

70 (two standard deviations below normal) as mental retar-

dation and significant subaverage intellectual functioning

under the Fourth Edition (text revision) of the American

Psychiatric Association’s Diagnostic and Statistical Manual

of Mental Disorders 49 (4th ed Text Revision 2000)); see also

State v. Ryan, 361 Or 602, 623, 396 P3d 867 (2017) (explain-

ing that “the undisputed evidence at sentencing showed

that defendant is an intellectually disabled offender who

has an IQ score between 50 and 60, a full 10 to 20 points

below the cutoff IQ score for the intellectual function prong

of the intellectual disability definition recognized in Hall [v.

Florida, 572 US 701, 719, 134 S Ct 1986, 188 L Ed 2d 1007

(2014)]”); accord Atkins v. Virginia, 536 US 304, 309 n 5,

122 S Ct 2242, 153 L Ed 2d 335 (2002) (observing that “an

IQ between 70 and 75 or lower * * * is typically considered

the cutoff IQ score for the intellectual function prong of the

mental retardation definition”).

Although the trial court found that defendant’s

“limited IQ and lack of education did not impede his interac-

tion with the detectives,” that factual finding does not insu-

late defendant’s IQ from consideration in the legal question

of voluntariness. “In resolving the issue [of whether defen-

dant’s will was overborne at the time he confessed] all the

circumstances attendant upon the confession must be taken

into account.” Reck v. Pate, 367 US 433, 440, 81 S Ct 1541,

6 L Ed 2d 948 (1961). That holistic approach was reinforced

a generation later by the United States Supreme Court in

Oregon v. Elstad, where the Court noted, “As in any such

inquiry, the finder of fact must examine the surrounding

circumstances and the entire course of police conduct with

respect to the suspect in evaluating the voluntariness of his

statements.” 470 US 298, 318, 105 S Ct 1285, 84 L Ed 2d 222

(1985).

It is true that lower levels of intellectual function-

ing by a defendant do not, automatically of themselves,

prohibit the state from meeting its burden to prove volun-

tariness. State v. Hickam, 71 Or App 471, 477, 692 P2d 672

Cite as 301 Or App 90 (2019) 109

(1984) (rejecting the defendant’s argument that “because

he is mentally retarded, his will to resist was overcome by

the mere fact of the questioning itself”). However, it is well

established that the personal characteristics of a defendant

must be considered in assessing the totality of the circum-

stances surrounding voluntariness. See, e.g., Reck, 367 US

at 443; Clewis v. Texas, 386 US 707, 712, 87 S Ct 1338, 18

L Ed 2d 423 (1967) (“petitioner’s faculties were impaired by

inadequate sleep and food, sickness, and long subjection to

police custody with little or no contact with anyone other

than police”).

In this case, defendant’s low IQ is a fact that is

binding on us on appeal and one that Jackson unequivocally

states must be considered in assessing whether defendant

was susceptible to inducement, even if his interactions with

police were not impeded. 364 Or at 30; see State ex rel Juv.

Dept. v. Deford, 177 Or App 555, 572, 34 P3d 673 (2001) (stat-

ing that a defendant’s personal characteristics, like age,

education, and intelligence, “are relevant only if police, in

fact, exert coercion and only insofar as those circumstances

render a suspect less able to resist that coercion”); accord

Rhode Island v. Innis, 446 US 291, 302 n 8, 100 S Ct 1682,

64 L Ed 2d 297 (1980) (“Any knowledge the police may have

had concerning the unusual susceptibility of a defendant to

a particular form of persuasion might be an important fac-

tor in determining whether the police should have known

that their words or actions were reasonably likely to elicit

an incriminating response from the suspect.”). Although

the trial court found that defendant’s IQ did not impede his

interactions with police, whether someone is susceptible to

coercion because of low intelligence or education is a differ-

ent question from whether the person’s intelligence is an

impediment to communication.

The second factual finding of the trial court that

informs our analysis is that defendant was, in fact, under

the belief that his infant son was in custody and under

the subjective belief that his cooperation would lead to his

son’s release. That is, regardless of how a father of average

intellectual functioning would have responded to the pos-

sibility of an infant being in police custody, this particular

110 State v. Vasquez-Santiago

defendant, with an IQ of 53, understood the circumstances

to involve urgency, including urgency over the child being

breast fed by his mother.6

From the outset of the interrogation, it was readily

apparent to detectives that defendant believed that police

had taken his infant son from the child’s nursing mother.

Before agreeing to turn himself in, defendant told one of

the detectives, “I want you to go leave the little boy with

his mom because he’s breast feeding.” When a detective was

asked what defendant’s understanding of the situation was,

he testified:

“[PROSECUTOR]: Well, you first asked him, ‘What do

you think is your understanding of the situation?’ Correct?

“[GANETE]: Yes.

“[PROSECUTOR]: And what was his response to that?

“[GANETE]: ‘Because he is a defenseless baby, you know,

and then getting blamed for something I had nothing to do

with.’ ”

Later in the interrogation defendant again pointed out that

his baby was being detained but was still at an age that he

needed to be breast fed. And, as the trial court found, “[t]he

transcripts reflect over ten times in which the defendant

referred expressly to his concerns about his son being in

custody.” While detectives did not create defendant’s belief

that his son was in custody, they affirmed, reinforced, and

encouraged that mistaken belief.

With those factual findings from the trial court, we

turn to the initial question identified in Jackson: whether

6

Of note, the trial court also found defendant to be a Mexican citizen. The

notion that the police would hold an infant in custody is not unrealistic. As the

Ninth Circuit recently noted:

“The State Department Human Rights Report on Mexico, while recognizing

the national government’s efforts to eliminate corruption and police entan-

glement with drug cartels, said that ‘corruption remained a problem at all

levels of government,’ and some ‘public officials continued to perpetrate . . .

some criminal acts with impunity.’ The State Department cited with approval

reports that ‘police, especially at the state and local level, were involved in

kidnapping, extortion, and in providing protection for, or acting directly on

behalf of, organized crime and drug traffickers.’ ”

Barajas-Romero v. Lynch, 846 F3d 351, 363-64 (9th Cir 2017) (ellipsis in original).

Cite as 301 Or App 90 (2019) 111

the detectives communicated inducements to defendant. As

demonstrated by the previously quoted excerpts from the

transcript of the interrogation, the answer to that ques-

tion is yes. The detectives made many statements through-

out the interrogation that communicated the idea of both

threats and promises to defendant: the threat that, if he

did not confess, his father, brother, and son would remain

in custody and would “suffer,” and the correlative promise

that, if he did confess, it may well secure their release and

prevent their suffering. The following are examples of what

defendant was told after Ganete confirmed that defendant’s

father, brother, and son were, in Ganete’s words, “in custody

for now”:

• “I don’t want your family to * * * suffer for something

that I know you are responsible for.”

• “You don’t want to leave it like this—a mess. You—I

believe your dad and your mom and your family don’t

deserve this, because everyone is suffering right now.”

• “And I have another family * * * suffering over their son,

that they want their son to tell the truth so the family can

have peace.”

• “I can’t let your family go until I find that body. And not

until I get the truth from you. Because they are the only

witnesses who can say what you told them.”

• “They are in custody now because they know the infor-

mation on this case and nobody but they knows the infor-

mation. And until we can verify what they are telling us

* * * through you or through finding the body or both things

* * * and we have to have them in custody until we can

verify.”

• “And we know that it’s very important that your dad and

brother work because they are the ones who support the

family and I know that’s important to you and to the fam-

ily. And that is the, the perspective of Detective LaMonica.

He is the primary investigator in this case. Of course I am

helping do the interviews in this case but, uh, let me say

something. I know that what you’re, uh, proposing and I

know that you’re doing this for your family.”

• “Now the—for us it’s, uh, as important for your family

and for everyone that everyone knows—knows the truth.

112 State v. Vasquez-Santiago

You know that if the truth comes forward, all will be

freed. * * * [Y]our family will be free because like—to use

your word—the hook in the case which is your dad and

[brother] is not so critical because things come straight

from your mouth. For you, it’s having that personal free-

dom about what happened. Because this is something you

can’t live with in your heart your whole life. You can’t live

with this. Absolutely not. Absolutely not. You have to free

yourself of that. The truth will solve this case for every-

one. Like you asked me, as an officer what do I gain by

this? I gain bringing peace to everyone, to the whole fam-

ily, closing a case, you go on with your life, that family to

have peace, your family to be able to go on living so that

your child can get ahead, your wife can get ahead and we

can fulfill—spread the benefit of the truth among every-

one. And [defendant], only you have that key. Why kid our-

selves? Here. It, it—I don’t know how I can explain it any

clearer than this.”

• “Your family are cool people. * * * [D]o you think I have

the pleasure and I enjoy watching a family suffer? I don’t

think you think that of me because I’ve shown you I’m not

that kind of person. To the contrary, I’ve constantly shown

you that all of this is to benefit your family and everyone

from all angles. So this is not something that, that, that the

police take a great satisfaction in bringing trouble to your

family and have them all suffer.”

• “They [defendant’s father and brother] told me but they

didn’t tell me everything. I know there’s a part you didn’t

tell them. And that is the part you have that frees all,

everyone. But that freedom, that decision is yours.”

• “I don’t want to see your family suffer any longer. I don’t

want to see that any, any longer. * * * Because that’s not

right and you know that it’s not right. Not for you or the

other family, or for your mother or your father or no one.

We have to stop the suffering. And you have to have peace

in your heart.”

• “[E]ach day we are not able to close this case in the

sense of not knowing the details and how it all happened

is one more day that your dad and [your brother] have to

be in jail because we, we aren’t able to free this. And of

course the sooner we can free this case and come to the con-

clusion of what happened the sooner I can move this case

forward[.]”

Cite as 301 Or App 90 (2019) 113

Those statements, as a whole, communicated to

defendant that (1) three members of his family were in cus-

tody; (2) his entire family was suffering as a result; and

(3) the key to securing the family members’ release and end-

ing the suffering was for defendant to confess to the murder.

Those statements fall easily within the range of communi-

cations that bring ORS 136.425 and Article I, section 12,

into play.

Constitutional protections against involuntary con-

fessions protect against not only extreme methods of coer-

cion, but also against the subtler techniques of interrogation

that can be equally, if not more, effective at eroding the will.

See, e.g., United States v. Tingle, 658 F2d 1332, 1335 (9th Cir

1981) (“Law enforcement conduct which renders a confession

involuntary does not consist only of express threats so direct

as to bludgeon a defendant into failure of the will. Subtle

psychological coercion suffices as well, and at times more

effectively, to overbear a rational intellect and a free will.”

(Internal quotation marks omitted.)). As the United States

Supreme Court noted so powerfully in Blackburn v. Alabama,

“coercion can be mental as well as physical, and [the] blood

of the accused is not the only hallmark of an unconstitu-

tional inquisition. A number of cases have demonstrated, if

demonstration were needed, that the efficiency of the rack

and the thumbscrew can be matched, given the proper sub-

ject, by more sophisticated modes of ‘persuasion.’ ” 361 US

199, 206, 80 S Ct 274, 4 L Ed 2d 242 (1960); see also Malloy

v. Hogan, 378 US 1, 7, 84 S Ct 1489, 12 L Ed 2d 653 (1964)

(“We have held inadmissible even a confession secured by so

mild a whip as the refusal, under certain circumstances, to

allow a suspect to call his wife until he confessed.” (Relying

on Haynes v. Washington, 373 US 503, 83 S Ct 1336, 10 L Ed

2d 513 (1963).)).

As defendant observes—and courts have routinely

recognized—appeals to parental and familial responsi-

bility can be especially coercive. For example, in State v.

Ruiz-Piza, 262 Or App 563, 325 P3d 802 (2014), we affirmed

the trial court’s suppression of a confession where police

suggested that the defendant’s daughter’s serious medical

issues could be ameliorated by a confession and effectively

114 State v. Vasquez-Santiago

told the defendant that a confession to accidentally shak-

ing his daughter was the only way to avoid the police con-

cluding that he had intentionally abused her. Id. at 574-76.

We explained that the detective’s representation that a con-

fession would ameliorate the child’s medical condition was

“an assertion that, as a matter of medical fact, is without

any support in the record.” Id. at 574. We then stated that

“the officers also appealed to defendant’s paternal respon-

sibilities, his religion, stated that defendant was the only

one who could help G, and stated, in effect, that the way to

provide that help was to tell the officers that he had acci-

dently shaken her.” Id. at 574-75 (emphasis in original). We

concluded that “[t]hose statements, taken in the circum-

stances in which they were made, constituted an ‘induce-

ment through * * * fear’ that was specifically calculated to

capitalize on what the trial court recognized as defendant’s

acute vulnerability.” Id. at 575 (quoting State v. Benton, 92

Or App 685, 689, 759 P2d 332 (1988)).

In State v. Hogeland, 285 Or App 108, 395 P3d 960

(2017), we similarly observed that psychological pressure

related to a defendant’s family can render a confession invol-

untary. In that case, the detective “intimated that she would

aggravate [the consequences of an abuse investigation] by

taking defendant’s child away from his wife—and from

him—and placing the child with strangers.” Id. at 120. We

held that, “by implicitly promising defendant leniency, while

simultaneously exploiting his vulnerabilities as a husband

and a father, [the detectives] critically impaired defendant’s

capacity for self determination, such that his admissions

cannot be considered ‘the product of an essentially free,

unconstrained, and informed choice[.]’ ” Id. at 121 (quoting

Ruiz-Piza, 262 Or App at 573).

Federal courts have reached similar conclusions

about the manifestly coercive effects of lying to a parent

about the custodial circumstances of their children or a

child’s health and safety. For example, in Lynumn v. Illinois,

the Court held that the defendant’s confession was involun-

tary where three police officers and a convicted felon falsely

told the defendant that, if she did not cooperate, she would

lose custody of her infant children and state financial aid for

Cite as 301 Or App 90 (2019) 115

the children would be terminated. 372 US 528, 534, 83 S Ct

917, 9 L Ed 2d 922 (1963).

Following Lynumn, federal appellate courts have

reasoned that, although police statements about family are

not per se coercive, courts must, at the very least, “be par-

ticularly cognizant of the risk of coercion when reviewing

interrogations where officers invoke references to a family

member.” United States v. Hufstetler, 782 F3d 19, 23 (1st Cir

2015). That is particularly true when an officer’s statements

appeal to a defendant’s “primordial” parental instincts. Id.

In Tingle, the Ninth Circuit highlighted the special relation-

ship between parents and their children:

“The relationship between parent and child embodies a pri-

mordial and fundamental value of our society. When law

enforcement officers deliberately prey upon the maternal

instinct and inculcate fear in a mother that she will not

see her child in order to elicit cooperation, they exert the

improper influence[.]”

658 F2d at 1336 (internal quotation marks omitted); accord

Hufstetler, 782 F3d at 22 (“[Officers’] use of a family member

uniquely tugs at a suspect’s emotions and thus can have an

undue impact.”).

Under the same rationale, the Ninth Circuit in

Brown v. Horell, 644 F3d 969, 981 (9th Cir 2011), described

the coercive nature of conditioning a defendant’s ability to

see his child’s birth on his cooperation with authorities:

“Rather than heed the warnings in Haynes, Lynumn and

Tingle to tread cautiously around the subject of famil-

ial attachments, [the agent] ‘deliberately prey[ed] upon,’

Tingle, 658 F2d at 1336, [defendant’s] expression of his

overwhelming desire to witness his child’s birth.”

The case now before us involves a similar failure

by police to “tread cautiously around the subject of famil-

ial attachments”—particularly, a parental relationship.

Contrary to the state’s position and the trial court’s legal

conclusion, the detectives’ assertions in this case—including

that they would “fight for” the release of defendant’s family,

including his infant, from police custody and that defendant

could alleviate his family’s suffering by confessing—were

116 State v. Vasquez-Santiago

inducements by hope and fear. The relationship between a

parent and a child, in particular the protective role that a

parent plays over a small child, especially an infant, touches

at the deepest parts of the human psyche. The notion that

a parent, when faced with imminent harm to their infant,

would cling to any branch of hope no matter how slender,

and do or say virtually anything to prevent that harm, needs

no citation. It is an axiom of the human experience. And,

contrary to the state’s argument here, that is so regardless

of whether the detectives also explained what they could

not promise—the release from custody itself. As the court

noted in Jackson, “[t]he hope of avoiding prosecution is not,

however, the only inducement that may render a confession

involuntary.” 364 Or at 23.

In fact, the court long has held that much more

indirect communications proposing that a confession could

secure a benefit or avoid a harm are sufficient to trigger

the protections of those provisions. In Wintzingerode, the

court upheld the exclusion of a confession where the officer

had told the defendant that “ ‘[i]t would be better for you,

Harry, to tell the whole thing.’ ” 9 Or at 162. Although those

words did not communicate how, precisely, it would have

been better for Harry to confess, the court reasoned that

“[t]he precise form of words in which the inducement is pre-

sented to the prisoner’s mind is immaterial. It is sufficient

if they convey to him the idea of temporal benefit or disad-

vantage, and his confession follows in consequence of the

hopes thereby excited.” Id. at 163; see also Powell, 352 Or at

226-27.

Having concluded that the detectives communicated

inducements to defendant, the remaining question under

Jackson is whether the state’s affirmative evidence is suffi-

cient to demonstrate that, under the totality of the circum-

stances, defendant’s will was not overborne by those induce-

ments. We conclude that the evidence was not sufficient.

As was true in Jackson, this is a close case. On the

one hand, the detectives made statements that qualified

what they were offering defendant by telling him that they

were not in the position to make promises to him. Defendant

received Miranda warnings at the outset of the interrogation

Cite as 301 Or App 90 (2019) 117

and indicated that he understood that he did not have to

speak to the detectives at all. The trial court found that,

notwithstanding his low IQ and lack of education, defendant

was able to comprehend the interview, which had been con-

ducted in Spanish, a language in which defendant is fluent.

All of this points to a conclusion that defendant’s will was

not overborne by the inducements offered.

On the other hand, the circumstances—both as

defendant reasonably believed them to be based on the

detectives’ representations and as they actually were—

as was the case in Jackson, “indicate that the detectives’

methods and inducements may have persuaded defendant

to tell the detectives what they wanted to hear, whether or

not that was the truth.” Id. at 32. The detectives commu-

nicated to defendant that his father, brother, and infant

son were in custody because of defendant’s conduct and

were suffering because of it. They further communicated to

defendant that the rest of his family was suffering because

the family was dependent on his father and brother as

wage earners, but they could not work to support the fam-

ily while in custody. Defendant’s family earned their liv-

ing as migrant farmworkers, making the incapacitation

of defendant’s father and brother as workers a significant

economic stressor for the family. Defendant’s son was still

breast feeding, increasing the need for him to be reunited

with his mother. At the time of the interview, defendant

had barely slept for three days. Time and again, defendant

was told that his family members’ freedom—something

essential for the family’s economic well-being—turned on

defendant confessing. And, even though the detectives told

defendant that they could not make any promises of par-

ticular results, their messages to defendant on that point

were mixed. For example, Ganete explicitly stated to defen-

dant that “I can’t let your family go until I find that body.

And not until I get the truth from you.” Ganete’s use of the

phrase “I can’t let your family go” communicated, in ten-

sion with some of the other representations to defendant,

that he had some role to play in the release of defendant’s

family. Considering the totality of these circumstances, the

state’s case falls short of establishing that defendant’s con-

fession was voluntary.

118 State v. Vasquez-Santiago

In sum, the state had the burden to overcome the

presumption that defendant’s confession was involuntary

by demonstrating that the confession was made without

inducement through fear or promises, direct or implied.

This record, in which detectives secured the confession of

defendant—a person with an IQ of 53—when he believed

that his infant was separated from the child’s nursing

mother and being detained by police, was repeatedly told

that his family was suffering, and was told that his confes-

sion to murder was the key to securing the family members’

release and ending that suffering, is not sufficient to demon-

strate the absence of such inducement. The trial court erred

in denying defendant’s motion to suppress the confessions.

Because the erroneous admission of the confessions was

prejudicial (a point the state does not dispute), we reverse

and remand his murder conviction.

Reversed and remanded.

GARRETT, J. pro tempore, dissenting.

After the victim’s disappearance, defendant knew

he needed to flee. He gathered his family members and drove

to California, leaving them there while he continued on to

Mexico. After family members were detained for question-

ing, defendant called the detectives; he broached the possi-

bility of cooperating; and he chose to turn himself in at the

U.S.-Mexico border. He met with the detectives, waived his

Miranda rights (the validity of that waiver has never been

challenged), and, after a “polite” interrogation, confessed to

murder.

The question before us is whether that confession

was voluntary. The Supreme Court’s recent decision in State

v. Jackson, 364 Or 1, 430 P3d 1067 (2018), provides an orga-

nizational approach for resolving that issue. First, we con-

sider “whether the officers who interrogated [the] defendant

induced him to make admissions by the influence of hope or

fear”; second, if they did, we next ask whether other circum-

stances reflect that the defendant’s admission was nonethe-

less the product of his free will. Id. at 22, 27-28.

As I will explain, the analysis in this case should

end at the first step of the inquiry because the detectives

Cite as 301 Or App 90 (2019) 119

made nothing close to the sort of “inducement” that has led

courts in past cases to conclude that police officers crossed

the line. But even if we assume otherwise and proceed to

the second step of the analysis, the record establishes that

defendant made the confession of his own free will. The

majority’s contrary conclusion rests heavily on the sup-

posed fact of defendant’s low intelligence, but the record on

that point is far more ambiguous than the majority opinion

reflects. Viewing the record in the light consistent with the

trial court’s findings and conclusions, as we are required to

do, the judgment should be affirmed.

At the center of this case is the important fact that

defendant believed that his family members, including his

infant son, were in police custody and he hoped that, by con-

fessing, he could help secure their release. If that was the

pressure that drove defendant to confess, then it is difficult

to conclude that the confession was “induced” by the police,

as that pressure was being exerted on defendant before he

met with the detectives. The pressure first arose, appar-

ently, during a conversation that defendant had with his

wife before he spoke to the police, as Ganete testified at the

suppression hearing:

“[PROSECUTOR]: Detective Ganete, according to the

defendant, what had [his wife] told him about what was

going on?

“[GANETE]: So, [defendant] said that [she] had told

him that they had detained his father and his brother and

his son.”

It was thus defendant who first introduced his fear for his

family into the conversation with the detectives. Defendant

called Ganete and expressed both his fear and hope that

the police would release his family if he cooperated with the

investigation:

“[DEFENDANT]: That’s why I want to take care of it

there. I, I don’t want to say anything here because, because

it doesn’t make any sense to talk here, saying all things

here. I want to take care of it personally.

“[GANETE]: Okay, when you—

120 State v. Vasquez-Santiago

“[DEFENDANT]: I want the little boy, the baby, I

want him to be given to [his] mother.

“[GANETE]: When we—

“[DEFENDANT]: That’s all I want.

“* * * * *

“[DEFENDANT]: That’s why I’m telling you, don’t

involve my family—don’t involve them in [it] if you have

problems with me.”

Ganete later testified that the point of the call was that

defendant “wanted to negotiate * * * the release of his father,

his brother, and his son.”

During the interrogation, defendant continued to

fixate on the detention of his family. The majority focuses

on that concern but pays insufficient attention to the fact

that it was defendant, not the detectives, who kept bringing

it up. The trial court found that the “transcripts reflect over

ten times in which the defendant referred expressly to his

concerns about his son being in custody.” Not long into the

interrogation, defendant (not the detectives) first suggested

the idea of confessing in exchange for the assured release of

his family:

“[DEFENDANT]: I want to assure you of one thing. If

you let my family go right now[,] I will tell you the truth.

***

“[GANETE]: You’re telling me that if I—what you’re

telling me is if your dad and your brother get out of jail—

“[DEFENDANT]: And my son.

“[GANETE]: —and your son, you will tell me where

the body is and everything that happened?

“[DEFENDANT]: Yes.

“[GANETE]: You will take me exactly to where it is,

where, where you dumped the body.

“[DEFENDANT]: If you take me there to my family. I

want to see that they are free and I will go with you.”

Defendant made such offers repeatedly, and the trial court

found that defendant “consistently tried to negotiate that he

Cite as 301 Or App 90 (2019) 121

would give a full statement regarding the incident in return

for his family being released from custody.” Meanwhile, the

trial court found that the detectives “time after time told

the defendant that they could not make such a deal,” saying

things like:

“[LAMONICA]: * * * We cannot make you any prom-

ises, we’re not allowed to.

“[GANETE]: We can’t make, make you promises

because we—the law doesn’t allow us to make promises.

“* * * * *

“[LAMONICA]: I want to be sure you understand the

position we are in. It’s not that we don’t want to understand

your position, I mean, so that’s not the case. I fully under-

stand what you’re telling me. As detectives we don’t have

* * * neither the responsibility nor the power under the law

to make a deal with someone ‘if you do this, I’ll do that’ and

so on. What we can do is, uh, pass the information on to the

person who makes the decisions on this case.

“* * * * *

“[GANETE]: * * * I think that I’ve clearly explained

our position to you, that my hands are tied to [a] certain

point because I—we are detectives, we are not judges or

district attorneys who take the cases and go to court and so

on. And that is further ahead.

“* * * * *

“[GANETE]: * * * I can’t make promises to you, but I

will tell you that I will fight as hard as I can to indicate

in my report and to put in black and white that you were

honest with me, you have told the truth, and that you’ve

cooperated with the police[.]”

The record thus shows that, in contrast to the

usual fact patterns underlying our “involuntary confes-

sion” cases, the information that supposedly led defendant

to be coerced—that his family members were in custody—

was known to him before the interrogation began. That

raises an obvious question: If defendant’s confession was

the result of coercive pressure, how much of that pressure

was created by detectives during the interrogation, and

how much did defendant carry into the room on his own?

122 State v. Vasquez-Santiago

One would think that we ought to consider that question

in evaluating what causal role any police “inducements”

played in defendant’s decision to confess. Yet the majority

does not engage with it.

Ganete and LaMonica did not say or do anything

comparable to the sort of conduct that has heretofore been

considered an unlawful inducement. Although the detec-

tives did, to some extent, play along with defendant’s hopes

and fears (and, unsurprisingly, did not correct his miscon-

ception about his son1), the detectives never added to those

pressures by, for example, asserting that other family mem-

bers were being detained, or otherwise threatening to do

something to the family except continue detaining them. In

some instances, the detectives even mitigated some of those

pressures; they repeatedly informed defendant that his

“hope” of securing the immediate release of his family was

unrealistic given the detectives’ lack of authority to make

such deals. See State v. Evans, 1 Or App 489, 495, 463 P2d

378, rev den (1970) (the defendant’s independent choice to

make a statement “in the hope or belief that it will excul-

pate or gain leniency for his wife or anyone else” did not

render confession involuntary where police were clear that

they could make no such promises).

1

We have never held that police are required to correct misunderstandings

or volunteer beneficial information to suspects during questioning. See, e.g., State

v. Clifton, 271 Or 177, 180-81, 531 P2d 256 (1975) (fact that the defendant inde-

pendently attributed greater reliability to a polygraph than it deserved did not

render his confession involuntary); State v. Tobias, 131 Or App 591, 595, 887 P2d

366 (1994) (the defendant’s confession to abusing children was voluntary not-

withstanding police’s failure to disclose to [the] defendant that some children

had denied abuse by the defendant); State v. Harberts, 109 Or App 533, 537, 820

P2d 1366 (1991), aff’d as modified, 315 Or 408, 848 P2d 1187 (1993) (officer’s false

“implied” expert qualifications in administering polygraph test, and failure to

disclose the exact scope of qualifications, did not render the defendant’s confes-

sion involuntary); State v. Benepe, 15 Or App 53, 58, 514 P2d 556 (1973), rev den

(1974) (police not obligated to tell the defendant that the victim in a car accident

had died and that the defendant was going to be charged with a crime); Moran v.

Burbine, 475 US 412, 422, 106 S Ct 1135, 89 L Ed 2d 410 (1986) (“[W]e have never

read the Constitution to require that the police supply a suspect with a flow of

information to help him calibrate his self-interest in deciding whether to speak or

stand by his rights.”); cf. State v. Burdick, 57 Or App 601, 606, 646 P2d 91 (1982)

(“[P]olice trickery or false statements, alone, may not be sufficiently coercive to

result in involuntariness.”); Frazier v. Cupp, 394 US 731, 739, 89 S Ct 1420, 22 L Ed

2d 684 (1969) (lies or deception alone by the police generally do not render the

defendant’s statement inadmissible).

Cite as 301 Or App 90 (2019) 123

Oregon courts have long distinguished between

permissible “adjuration” and impermissible “inducement.”

See Jackson, 364 Or at 24; State v. Linn, 179 Or 499, 510,

173 P2d 305 (1946). The difference is that “adjurations” will

communicate to the defendant that, as a general matter, it

would be better to tell the truth, or that he or she would

feel better by telling the truth; “inducements,” on the other

hand, will communicate a threat or promise. Jackson, 364

Or at 24.

In this case, the detectives did very little. Ganete

and LaMonica never promised to release defendant’s family

if he confessed (on the contrary, they repeatedly shut down

defendant’s attempts to elicit such a promise); they never

promised defendant that he would be prosecuted more leni-

ently if he confessed; they never threatened to do anything to

defendant or his family if he did not confess; they never were

hostile in their questioning (the transcript shows that they

were, if anything, solicitous and, as the trial court found,

“polite”). All the detectives did was affirm defendant’s pre-

existing understanding of the situation, encourage him to

free himself and others of the emotional and spiritual bur-

dens of his actions by confessing to them, and promise to

convey his cooperation to the prosecutor.

The majority concludes that the detectives’ com-

ments fall “easily within the range” of communications that

have been held to constitute inducement. 301 Or App at 113.

That characterization is hard to square with Jackson, in

which the Supreme Court considered significantly more hos-

tile and threatening conduct by interrogating officers and

still described that as a “close case.” 364 Or at 31. The police

in Jackson detained a mentally and physically disabled sus-

pect overnight; they prohibited him from contacting family

members on whom he regularly depended; they engaged in

intense and combative questioning; and they made specific

threats and promises about how the case against him would

proceed, including that, if he did not confess, they would

charge him with other murders and work to ensure that he

received a harsh sentence. Id. at 25.

In comparison, Ganete’s and LaMonica’s conduct

was positively mild. The majority observes that the detectives

124 State v. Vasquez-Santiago

made remarks that defendant’s family was “suffering,”

which, according to the majority, constituted a “threat” that

the family would “remain in custody and would ‘suffer’ ” if

defendant failed to confess. 301 Or App at 111. But, in con-

text, the detectives’ nonspecific remarks that defendant’s

family was “suffering” carried no implicit suggestion that

police would make things worse for the family, legally or

otherwise, or that the police would change the “natural con-

sequences” of the situation if defendant failed to confess.

On the contrary, the detectives made only “adjurations” by

encouraging defendant to do the moral thing: recognize how

his actions had burdened his family and lift those burdens

by owning up to what he had done. Cf. Jackson, 364 Or at

27 (police comments were to the effect that “it wasn’t just

that the natural consequence [of the defendant’s refusal to

cooperate] would be a certain thing, but [instead that] the

police would actively work to make things as bad as possible

for him” (emphases added)).

Nor, in light of our case law, did the detectives cross

the line by suggesting to defendant that his cooperation

could increase the chances of his family members’ release.

That is so for a couple of reasons.

For one, we have generally held that assurances

by police that they will report a defendant’s cooperation to

the prosecutor are permissible, as opposed to promises of

immunity or leniency, which render confessions involun-

tary. Compare State v. Williams, 64 Or App 448, 455, 668

P2d 1236, rev den, 296 Or 120 (1983) (“[T]he officers agreed

only to forward [the] defendant’s request to the officials with

authority to ‘deal’ with him. * * * [W]hile [the] defendant may

have felt impelled by his desire not to disappoint his brother,

the only ‘promise’ made to [the] defendant by the police was

a promise to convey a request—a promise made without any

effort by the officers to make that conveyance contingent on

anything.”), and State v. Morris, 248 Or 480, 482-83, 435

P2d 1018 (1967) (“[N]o promises of benefit or hope of bene-

fit were held out to the defendant to obtain his confession.

The officers merely agreed to make known his desires to the

district attorney, and this was done.”), with State v. Aguilar,

133 Or App 304, 307-09, 891 P2d 668 (1995) (police promises

Cite as 301 Or App 90 (2019) 125

of leniency or immunity for the crime to which a defendant

confesses are involuntary “as a matter of law” because “[i]t

is assumed that when a person confesses in response to a

promise that the person will not be charged with the crime

for which the confession is made, the person’s confession is

not the product of an essentially free and unconstrained

choice”).

As for Ganete’s and LaMonica’s suggestion that

defendant’s cooperation might cause the prosecutor to look

favorably on the prospect of releasing the family members,

the speculative and contingent quality of that suggestion

makes it unlike the sorts of promises and threats that have

been held to render confessions involuntary. For example,

the statements here are nothing like those in Jackson, where

the police assured (or threatened) that, if the defendant did

not confess, the police would charge him with other murders

and “do everything they could to ensure that [the defendant]

received a harsh sentence.” 364 Or at 25. Nor do they com-

pare to the statements made to the defendant in State v.

Hogeland, 285 Or App 108, 111, 395 P3d 960 (2017), where

an officer told the defendant, “I’m going to have to put [your

infant] in stranger foster care” if the defendant did not con-

fess, or to the defendant in State v. Ruiz-Piza, 262 Or App

563, 569-70, 325 P3d 802 (2014), in which the defendant was

accused of shaking his baby, and the police told the defen-

dant that his child was going to die or go blind unless the

defendant confessed and provided information that would

help doctors ameliorate the child’s condition.

In short, I disagree that the comments cited by the

majority rose to the level of “inducement” capable of caus-

ing defendant to confess involuntarily. See State v. Powell,

352 Or 210, 222, 282 P3d 845 (2012); State v. Hickam, 71 Or

App 471, 477, 692 P2d 672 (1984) (involuntary confessions

occur where coercive circumstances are “sufficient in their

totality to overcome defendant’s will to resist”). Because the

detectives made no improper inducement at all, I would find

it unnecessary to proceed to the second step of the Jackson

analysis, which is to consider whether, notwithstanding any

inducement, the totality of the circumstances indicates that

defendant’s confession was nonetheless voluntary. However,

126 State v. Vasquez-Santiago

consideration of that second question further supports the

trial court’s conclusion that defendant acted voluntarily.

Defendant’s conduct and demeanor both before and

during the interrogation strongly indicate that he was act-

ing of his own free will. Defendant became involved in the

investigation not because the detectives contacted him, but

rather because he reached out to Ganete and LaMonica at

his own initiative, evidencing his willingness from the start

to engage with the detectives about the case. Defendant

then left Colonet, Mexico, traveled north through Ensenada

and Tijuana, and turned himself in at the California border.

That sequence of events gave defendant plenty of time to

consider his options.

When the interrogation began, defendant waived

his Miranda rights, and no one contends that defendant’s

Miranda waiver was anything less than fully informed and

valid. As I will explain further below, defendant’s valid

Miranda waiver is an especially strong indication that his

conduct during the ensuing interrogation was voluntary.

See Jackson, 364 Or at 21 (provision of Miranda warnings

weighs in favor of voluntariness); State v. McAnulty, 356 Or

432, 459, 338 P3d 653 (2014), cert den, ___ US ___, 136 S Ct

34 (2015) (the defendant’s confession was voluntary where it

followed a valid Miranda waiver and where the defendant ini-

tiated the interrogation herself); State v. Rodriguez-Moreno,

273 Or App 627, 638-39, 359 P3d 532 (2015), rev den, 358 Or

611 (2016) (provision of Miranda warnings generally weighs

in favor of voluntariness); see also Berkemer v. McCarty, 468

US 420, 433 n 20, 104 S Ct 3138, 82 L Ed 2d 317 (1984)

(“[C]ases in which a defendant can make a colorable argu-

ment that a self-incriminating statement was ‘compelled’

despite the fact that the law enforcement authorities adhered

to the dictates of Miranda are rare.”).

At numerous points in the interrogation, after

waiving his Miranda rights, defendant drove the conversa-

tion. He tried repeatedly to propose deals on his own terms,

which suggests that he was exercising free will in choosing

whether, and under what circumstances, he was prepared to

confess. In addition, defendant, rather than rushing to sac-

rifice himself for his family members, selectively withheld

Cite as 301 Or App 90 (2019) 127

and disclosed information, sometimes revealing informa-

tion only after he was sure that the detectives already knew

about it, thus leveraging his own knowledge to figure out

what the police knew. (Ganete described the interview as

a “chess match” because of the way defendant selectively

withheld and disclosed information piecemeal throughout

the interview.)

Defendant also challenged various assertions that

the detectives made. At some points, defendant asked them

to show him proof of their evidence, including evidence relat-

ing to the location of the victim’s cell phone and the tape-

recorded interviews of his father and brother. Defendant

later called out the detectives’ attempts to use his family as

leverage:

“[GANETE]: * * * [W]hat we know is that your dad

and your brother are key witnesses in this case. And they

are less key if we validate the information they gave us

through you. That means that if you tell me exactly what

happened and tell me exactly where, where I can find [the

victim], then they aren’t so critical to this case because it

comes straight from you. But if I don’t hear anything out

of your mouth, nothing comes from you, they are the key

people who can say.

“[DEFENDANT]: The little hook.

“* * * * *

“[GANETE]: They are the hooks of the case. And the

way you release that hook is if you take the responsibility

of saying, ‘well, uh, I’ll tell what it is, I’ll tell you what hap-

pened’ and his testimony, theirs, won’t have the same value

as your testimony, and that’s why the hook, that hook’s not

to—

“[DEFENDANT]: Also to pull me.

“[GANETE]: Yes. Exactly.”

Finally, other general considerations indicate that

defendant was not coerced: the detectives were never hostile

toward defendant and, as the trial court found, “[t]he inter-

view was polite in tone throughout”; the detectives gave

defendant opportunities for breaks, including to use the

bathroom; the interrogation was relatively short in length,

128 State v. Vasquez-Santiago

lasting only about two hours and 15 minutes; defendant was

sober and lucid throughout the interrogation.2

Compare all those circumstances to Jackson. In

that case, police officers collected the defendant and brought

him to the interrogation without giving him any infor-

mation about what they wanted to talk about; the defen-

dant did not know he was being accused of murder until

that subject arose during the interrogation. Jackson, 364

Or at 4. The police officers (not the defendant) drove the

conversation—the defendant, meanwhile, did not try to pro-

pose deals or leverage his own knowledge against the police,

but rather asserted that he could not remember what hap-

pened and was trying his best to remember (which, as dis-

cussed more below, may have been difficult for him because

of his history of drug use, memory problems, and blackouts).

Id. at 15. The interrogation in Jackson lasted for over 10

hours, over the course of two days (eight hours on the first

day), and the tone was “intense” and “hostile” at several

points. Id. at 31. When the police detained the defendant

overnight, they forbade him from contacting his family

members on whom he regularly depended due to his mental

and physical health issues. Id. at 31-32.

This case is nothing like Jackson, with the excep-

tion that this defendant, too, is asserted to have a mental

disability. The majority relies heavily on that aspect of the

record; after stating that it is bound by the trial court’s

“finding” that defendant has an IQ of 54, 301 Or App at 109,

the majority proceeds to explain why that fact supports the

conclusion that defendant’s will was overborne.

The majority’s treatment of the factual record is

questionable. The trial court did make a finding that defen-

dant has an IQ of 53, but there is more to the story. In an

aid-and-assist hearing before the suppression hearing, the

trial court determined that defendant was malingering

mental illness to avoid legal responsibility and stay in the

2

Specifically, the trial court found that defendant “was not suffering any

psychosis during his interactions with the detectives. Although the defendant

had slept little in the proceeding [sic] days, he did not manifest any drowsiness

during the interrogation. The defendant was not under the influence of any intox-

icants.” The trial court also found that “[t]here were no communication problems”

during the interrogation.

Cite as 301 Or App 90 (2019) 129

hospital rather than returning to jail. The court’s findings

were based in part on defendant’s two admissions to “fak-

ing” misunderstanding what was told to him. One of the

doctors who examined defendant also testified that she

believed that defendant intentionally underperformed on

the IQ test and that she did not think that the test results

were a “true measure of his IQ.” Other doctors apparently

suspected that defendant was malingering and had seen

defendant’s demeanor change upon his noticing that doctors

were present, leading one doctor to suspect that defendant

was “putting on an act” for the doctors.

Those facts were before the trial court at the time

that it ruled on the question of voluntariness. It is true

that the trial court did not expressly make findings casting

doubt on the validity of defendant’s IQ test. However, as a

reviewing court, we are required to view the facts in the

light consistent with the trial court’s ultimate conclusion,

and, when in doubt, to assume that the trial court resolved

factual issues in a manner consistent with its ultimate con-

clusion of voluntariness. Ball v. Gladden, 250 Or 485, 487,

443 P2d 621 (1968). In light of the trial court’s ultimate

conclusion that defendant acted voluntarily and its findings

that defendant’s interactions with the detectives were not

impaired, we should presume that the trial court did not

view the bare fact of defendant’s IQ test result as dispositive

of defendant’s mental abilities, in the face of countervailing

evidence that suggested very different things about those

abilities. The majority, however, ignores that other evidence,

focusing entirely on the test result. If any legal authority

requires that approach, the majority does not cite it.

A defendant’s personal characteristics are relevant

to voluntariness “only if police, in fact, exert coercion and

only insofar as those circumstances render a suspect less able

to resist that coercion.” State ex rel Juv. Dept. v. Deford, 177

Or App 555, 572, 34 P3d 673 (2001) (emphasis added). Here,

assuming that defendant has below-average intelligence, it

is notable that the majority never identifies exactly how that

affected his conduct. That conduct supports the trial court’s

finding that defendant was not impeded; rather, he entered

the interrogation room with a view to securing the best deal

130 State v. Vasquez-Santiago

that he could get, and the interrogation was essentially a

negotiation.

By giving decisive weight to defendant’s IQ score in

the face of evidence about how he actually conducted him-

self, the majority departs from how we have treated defen-

dants’ personal characteristics in past cases. We have looked

beyond general assertions regarding a defendant’s level of

mental competence and evaluated the record for indications

of actual impairment in the interactions between the defen-

dant and the police. See, e.g., State v. Davis, 98 Or App 752,

754-55, 780 P2d 807 (1989), rev den, 309 Or 333, cert den,

498 US 827 (1990) (the defendant’s confessions were volun-

tary, notwithstanding his “low maturity and intelligence

levels”; concluding that “[t]he trial court’s reliance on [the]

defendant’s ‘dull normal’ intelligence was * * * misplaced”

because “[t]here is nothing in the record to show that [the]

defendant was unaware of what was happening” and “[t]he

record illustrates that he was able to comprehend the ques-

tions asked and to respond as he saw fit”); Hickam, 71 Or

App at 477-78 (“Implicit also in the conclusion of voluntari-

ness is the finding that, despite his retardation, [the] defen-

dant was able to comprehend the questions asked and to

respond as he saw fit.”); see also State v. Vu, 307 Or 419, 425,

770 P2d 577 (1989) (rejecting the defendant’s argument that

“cultural differences” and “lack of English language skills”

made his confession involuntary, where the defendant did

“not contend that the cultural differences coerced him into

making the false statement or that he misunderstood the

question because of his poor language skills”).3

3

Jackson, in contrast, is a case in which the defendant’s personal charac-

teristics put him at specific disadvantages in his interactions with police. The

defendant in Jackson suffered from, among other things, schizophrenia and

depression, which made defendant more reliant on daily assistance from fam-

ily members as well as a live-in care provider; he also had high blood pressure

and was generally in poor physical health. 364 Or at 29, 32. The police officers’

techniques exploited those weaknesses: The interrogation was both “physically

and mentally demanding,” lasting for over 10 hours and becoming “intense” and

“hostile” at various points. The police also detained the defendant overnight

and did not let the defendant contact the family members on whom he regularly

depended, despite his multiple requests to do so, and the police encouraged him to

see confession as a means of ending the interrogation. Id. at 29, 32. Further, the

defendant in Jackson suffered from memory loss and blackouts, which was signif-

icant given that the murders that the defendant was being accused of committing

had occurred several decades earlier, thereby making it all the more difficult for

the defendant to defend himself. Id. at 31-32.

Cite as 301 Or App 90 (2019) 131

For the foregoing reasons, I would conclude that the

detectives in this case made no improper “inducements” and

that, in all events, the record supports the trial court’s con-

clusion that defendant’s free will was not overborne and his

capacity for self-determination was not critically impaired.

Under the totality of circumstances, defendant’s confession

was voluntary.

I conclude with an observation. As already noted,

to the extent that defendant was under coercive pressure at

the time that he confessed, that pressure came into being

before the interrogation ever began. The critical piece of

information—that defendant’s family members were in

custody—is not a fact that the detectives imparted to defen-

dant; he came to that understanding on his own (which is

why he surrendered), and he fully understood the situation

(albeit with some incorrect factual information) at the time

that he waived his Miranda rights. That fact appears not to

weigh in the majority’s analysis, but it should.

The United States Supreme Court has explained

that “cases in which a defendant can make a colorable

argument that a self-incriminating statement was ‘com-

pelled’ despite the fact that the law enforcement authorities

adhered to the dictates of Miranda are rare.” Berkemer, 468

US at 433 n 20. The Oregon Supreme Court has also rec-

ognized that Miranda plays a role here. See, e.g., Jackson,

364 Or at 21 (the provision of Miranda warnings weighs in

favor of voluntariness, even if it is not necessarily an out-

right “guarantee” of voluntariness); McAnulty, 356 Or at 459

(the defendant’s confession was voluntary where it followed

a valid Miranda waiver and where the defendant initiated

the interrogation herself).

Though Oregon courts have acknowledged the

importance of a Miranda waiver in this particular context,

little appears to have been said about it.

The purpose of reading Miranda rights is to coun-

teract the inherently compelling atmosphere of an in-

custody police interrogation by empowering the suspect

with the knowledge that he or she can, in a certain sense,

level the playing field by exercising certain rights. Miranda

v. Arizona, 384 US 436, 468-70, 86 S Ct 1602, 16 L Ed 2d

132 State v. Vasquez-Santiago

694 (1966). When a suspect voluntarily declines to exercise

those rights, he or she chooses to proceed knowing that the

circumstances are inherently coercive. Thus, police tactics

that are calculated to persuade a suspect to confess are not

generally impermissible; nothing less than an inherently

coercive atmosphere is to be expected.

The reason that a valid Miranda waiver cannot

be dispositive of voluntariness, of course, is that, even if a

person has the capacity to execute such a waiver before the

interrogation begins, police might do something after that

point to impair the person’s capacity for self-determination.

For example, they might beat him. Impairment can also

result from psychological pressure, such as where police

inform a suspect that his baby is in critical medical con-

dition and that the baby’s life may depend on the suspect’s

providing information immediately. See Ruiz-Piza, 262 Or

App at 572-75.

However, because a person who waives his Miranda

rights is presumed to know that he is walking into the lion’s

den, the threshold for finding psychological pressure to

be impermissibly coercive must necessarily be high.4 That

is why mere “adjuration”—psychological pressure to “do

the right thing”—has never been deemed to be improper.

It follows that, if the psychological pressure on a suspect

is in place before the interrogation begins, and if a defen-

dant nonetheless has the capacity to make a valid waiver of

his Miranda rights, then the ordinary tactics of persuasion

that police employ during the ensuing interrogation should

not be a basis for concluding that defendant’s capacity was

lost. Under such circumstances, it should be harder—not

easier—to show that a confession was caused by an unlaw-

ful police inducement.5 By finding unlawful inducement in

4

One of the implications of this is that pre-Miranda cases on the subject

of involuntary confessions may be of limited value. For example, although the

Supreme Court concluded more than a century ago that police induced a defen-

dant to confess by saying, “[i]t would be better for you, Harry, to tell the whole

thing,” see State v. Wintzingerode, 9 Or 153, 162 (1881), it is questionable whether

that case, if decided after Miranda, would have come out the same way.

5

The majority interprets this observation to be incorrectly assigning the

burden to defendant to prove that his confession was involuntary. 301 Or App at

106 n 4. I agree that the converse is true; the state must prove that the confes-

sion was voluntary. However, the point is largely academic; notwithstanding how

Cite as 301 Or App 90 (2019) 133

these circumstances, based on such relatively innocuous

police conduct, the majority’s decision has the opposite effect.

I respectfully dissent.

Armstrong, DeVore, Tookey and Powers, JJ., and

Hadlock, J. pro tempore, join in the dissent.

cases have described the allocation of the burden of proof, they make clear that

the state’s burden is satisfied unless the evidence shows an improper inducement

sufficient to have caused a person to act involuntarily. That bar is a high one, and

it should not be lowered because a defendant happens to be under pressure before

an interrogation begins.