State v. Craigen

696

Argued and submitted March 3, 2022; decision of Court of Appeals affirmed;

judgment of circuit court affirmed in part and reversed in part, and case

remanded to circuit court for further proceedings January 19, 2023

STATE OF OREGON,

Petitioner on Review,

v.

GEORGE WEST CRAIGEN,

Respondent on Review.

(CC CF140169) (CA A158112) (SC S068736)

524 P3d 85

Defendant moved to suppress evidence obtained as a result of police ques-

tioning on the ground that the questioning violated his right to counsel under

Article I, section 11, of the Oregon Constitution because, although the question-

ing occurred during an interrogation about a crime that he had not yet been

charged with, it concerned other crimes that he had already been charged with

and on which he was represented by counsel. Held: Police questioning about

crimes on which defendant had been charged and was represented by counsel

violated defendant’s Article I, section 11, right to counsel and evidence obtained

as a result of that violation had to be suppressed.

The decision of the Court of Appeals is affirmed. The judgment of the circuit

court is affirmed in part and reversed in part, and the case is remanded to the

circuit court for further proceedings.

On review from the Court of Appeals.*

Michael A. Casper, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on

review. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

David O. Ferry, Deputy Public Defender, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief was Ernest G. Lannet, Chief Defender, Office of

Public Defense Services.

Claire Powers, Oregon Justice Resource Center, Portland,

filed the brief for amicus curiae Oregon Justice Resource

Center. Also on the brief was Malori Maloney.

______________

* Appeal from Umatilla County Circuit Court, Russell B. West, Judge. 311

Or App 478, 489 P3d 1071 (2021).

Cite as 370 Or 696 (2023) 697

Before Flynn, Chief Justice, and Duncan, Nelson, and

DeHoog, Justices, and Kistler and Walters, Senior Judges,

Justices pro tempore.**

DUNCAN, J.

The decision of the Court of Appeals is affirmed. The judg-

ment of the circuit court is affirmed in part and reversed in

part, and the case is remanded to the circuit court for fur-

ther proceedings.

______________

** Balmer, J., retired December 31, 2022, and did not participate in the deci-

sion of this case. Garrett, Bushong, and James, JJ., did not participate in the

consideration or decision of this case.

698 State v. Craigen

DUNCAN, J.

While interrogating defendant about the murder

at issue in this case, which defendant had not yet been

charged with, detectives asked defendant about firearms

crimes, which defendant had already been charged with in

other cases and on which he was represented by counsel.

After the state brought this murder case against defendant,

defendant filed a motion to suppress evidence obtained as a

result of the interrogation, including, as relevant on review,

evidence obtained as a result of the questioning about the

firearms cases. Defendant argued that that questioning vio-

lated his right to counsel under Article I, section 11, of the

Oregon Constitution and that all evidence resulting from

the violation had to be suppressed. The trial court denied

the motion. Defendant appealed, renewing the argument

that he had made in the trial court. The Court of Appeals

agreed with defendant. For the reasons explained below, so

do we.

I. HISTORICAL AND PROCEDURAL FACTS

The relevant facts are few. In 2011, defendant was

facing four charges of felon in possession of a firearm (FIP).

Defendant had retained counsel, Gushwa, to represent him

on those charges. Gushwa had sent the district attorney a

notice stating, “Please instruct all police officers and per-

sonnel of your office not to speak to the defendant without

first obtaining written permission from me.”

On December 30, 2011, when he was scheduled to

appear for a status conference on the FIP charges, defendant

shot and killed his neighbor, Carter. Two days later, detec-

tives investigating the shooting interrogated defendant. The

detectives did not notify Gushwa about the interrogation.

They believed that Gushwa no longer represented defendant

on the FIP charges, but that belief was mistaken. Gushwa

was still defendant’s counsel of record on those charges.

Although Gushwa would later file a motion to withdraw, he

had not done so at the time of the interrogation.

Early in the interrogation, the detectives asked

defendant why he had shot Carter, and defendant told them

that he believed that Carter and his family had set him up

Cite as 370 Or 696 (2023) 699

on the FIP charges. One of the detectives then asked defen-

dant directly about the FIP charges, including how defen-

dant had come into possession of the firearms on which the

FIP charges were based.

The detectives continued to ask defendant about his

motive for shooting Carter and, at several points during the

interrogation, defendant reiterated his belief that Carter

had set him up on the FIP charges to ensure that defendant

would serve a long prison sentence.

After the interrogation, the state brought this case

against defendant based on the shooting incident, charging

defendant with several crimes, including murder, which is

the only charge at issue on review.1 This murder case is sep-

arate from the FIP cases.

Prior to trial in this case, defendant filed a motion

to suppress evidence resulting from the interrogation. As

relevant on review, defendant moved to suppress evidence

obtained as a result of the questions that the detectives had

asked after defendant told them that he had shot Carter

because he believed that Carter had set him up on the FIP

charges, including evidence obtained as a result of the ques-

tions that detectives had asked about the FIP charges, spe-

cifically, how he had come into possession of the firearms

that he was charged with possessing. Defendant argued

that those questions violated his right to counsel under

Article I, section 11, of the Oregon Constitution. The trial

court denied the motion.

The case proceeded to a jury trial. Defendant did

not dispute that he had shot and killed Carter. Instead,

he raised two defenses relating to his mental condition,

one based on insanity and the other based on an extreme

emotional disturbance.2 To support the defenses, defense

1

In addition to charging defendant with murder, ORS 163.115, the state

charged defendant with manslaughter, ORS 163.118; FIP, ORS 166.270; unlaw-

ful use of a weapon, ORS 166.220; obliteration or change of identification num-

ber on a firearm, ORS 166.450; and three counts of reckless endangering, ORS

163.195.

2

ORS 161.295 provides that a person is guilty except for insanity if, “as a

result of a qualifying mental disorder at the time of engaging in criminal con-

duct, the person lacks substantial capacity either to appreciate the criminality of

the conduct or to conform the conduct to the requirements of law.” ORS 163.135

700 State v. Craigen

counsel presented evidence that defendant had brain dam-

age and a history of delusional thinking, including delusions

about Carter. Although Carter had been defendant’s friend,

defendant had come to believe that Carter had caused defen-

dant’s wife to leave him, had plotted to have him put in jail,

and intended to acquire his property. The state disputed

defendant’s claims about his mental condition. It played a

video recording of the detectives’ interrogation of defendant,

which it used to argue that the shooting was not the product

of insanity or an extreme emotional disturbance.

The jury rejected defendant’s defenses and found

him guilty of murder and other charges.3 On the murder

count, the trial court sentenced defendant to life with the

possibility of parole after 25 years.

Defendant appealed, and the Court of Appeals held

that the trial court had erred in denying defendant’s motion

to suppress. State v. Craigen, 295 Or App 17, 19, 432 P3d 274

(2018) (Craigen I). The court first stated that, under State v.

Prieto-Rubio, 359 Or 16, 376 P3d 255 (2016), “ ‘the appropri-

ate test for determining the permissible scope of question-

ing of a criminal defendant who is represented by counsel

is whether it is objectively reasonably foreseeable that the

questioning will lead to incriminating evidence concerning

the offense for which the defendant has obtained counsel.’ ”

Craigen I, 295 Or App at 26 (quoting Prieto-Rubio, 359 Or

at 18 (alteration omitted)). Applying that test, the court con-

cluded that, “after defendant disclosed his belief that the

victim had set him up on the 2011 firearm charges, the

officers’ continued questioning violated defendant’s rights

under Article I, section 11.” Id. at 27. The court explained:

“Once defendant disclosed to detectives that there was

a connection between the 2011 firearm charges and his

provides that an extreme emotional disturbance is an affirmative defense to mur-

der in the second degree when (1) the homicide is committed under the influence

of extreme emotional disturbance, (2) the disturbance is not the result of the

person’s own culpable conduct, and (3) there is a reasonable explanation for the

disturbance.

3

In addition to murder, the jury found defendant guilty of a new FIP charge,

as well as charges of unlawful use of a weapon and obliteration or change of

identification number on a firearm, all related to the shooting of Carter. The trial

court dismissed manslaughter and reckless endangering counts.

Cite as 370 Or 696 (2023) 701

animosity toward the victim and his family, it became rea-

sonably foreseeable, as an objective matter, that further

questioning would elicit incriminating information about

the FIP charges, on which defendant was represented.

Indeed, not only was it foreseeable at that point that fur-

ther questioning might elicit incriminating information

about the firearm charges, [one of the detectives] explicitly

questioned defendant about the firearms underlying those

charges, eliciting incriminating information from defen-

dant about how he came to possess those firearms. That

questioning was in direct violation of defendant’s right to

counsel on those charges.”

Id. at 28 (citing State v. Beltran-Solas, 277 Or App 665, 670,

372 P3d 577 (2016) (noting state’s concession that an officer

violated the defendant’s right to counsel when, during an

interrogation about uncharged crimes, the officer asked the

defendant about charged crimes on which the defendant had

counsel) (footnote omitted)).

After concluding that the detectives’ questioning

about the FIP charges violated defendant’s right to counsel

on those charges, the Court of Appeals considered whether

evidence resulting from that questioning had to be sup-

pressed. Craigen I, 295 Or App at 29. The court explained

that, under its case law, “ ‘[i]f a defendant is interrogated in

violation of his right to counsel under Article I, section 11,

any evidence discovered as result—including evidence of

other crimes—must be suppressed unless the state demon-

strates that the evidence was not the product of the consti-

tutional violation.’ ” Id. (quoting State v. Hensley, 281 Or App

523, 534, 383 P3d 333 (2016), and citing State v. Savinskiy,

286 Or App 232, 242-43, 399 P3d 1075 (2017) (Savinskiy I)).

The court then noted that the state had not contended

that it had made that showing. Craigen I, 295 Or App at

29. Instead, the state had argued, among other things,

that,

“regardless of any violation of defendant’s Article I, section

11, rights with respect to the FIP charges, suppression of

defendant’s statements is not required in this [murder]

case because, at the time that defendant was questioned,

his Article I, section 11, rights had not yet attached with

respect to this case.”

702 State v. Craigen

Id. at 30 (emphasis in original). The court rejected that

argument, explaining that it had rejected an identical argu-

ment in Savinskiy I. Id. Consequently, the court concluded

that the trial court had erred in denying defendant’s motion

to suppress. Id.4

Finally, the Court of Appeals considered whether

the trial court’s erroneous denial of defendant’s motion to

suppress was harmless. Id. at 30-31. The court noted that

defendant’s mental condition at the time of the shooting

was the central issue in the case and concluded that defen-

dant’s statements during the interrogation, “on which the

state relied in urging the jury to reject defendant’s * * *

defenses, likely played some role in the jury’s rejection of

those defenses” as to the murder charge. Id. at 30. Therefore,

the court reversed and remanded defendant’s conviction for

murder, remanded the case for resentencing, and otherwise

affirmed the trial court’s judgment. Id. at 31.5

4

In addition to arguing that suppression was not required because defen-

dant’s right to counsel had not attached to the murder charge at the time of

the questioning, the state argued that suppression was not required because the

detectives believed that Gushwa had withdrawn from the FIP cases. The court

rejected that argument on the ground that, “once a defendant has retained an

attorney, a person cannot validly waive his Article I, section 11 right to an attor-

ney without having an opportunity to consult with his attorney.” Craigen I, 295

Or App at 29 (internal quotation marks omitted).

On review, the state acknowledges that the detectives’ belief that Gushwa

no longer represented defendant was “not accurate” and that their belief “did not

alter the fact that defendant’s right to counsel had attached in the FIP case.”

5

After the Court of Appeals issued Craigen I, the state petitioned for recon-

sideration, asking the court to clarify its disposition regarding three assignments

of error that it had not expressly addressed in its decision. Defendant had raised

the assignments in a supplemental brief after the decision in State v. Zielinski,

287 Or App 770, 404 P3d 972 (2017), which concerned the admissibility of evi-

dence of “personal characteristics” offered in support of an extreme emotional

disturbance defense. The assignments challenged the trial court’s exclusion of

evidence that defendant had proffered regarding his mental condition at the time

of the shooting, and the state asserted that the evidentiary issues raised by the

assignments were likely to arise on remand.

The Court of Appeals allowed the state’s petition for reconsideration and held

that the trial court had erred in ruling that one category of defendant’s proffered

evidence was irrelevant, but that it had not erred ruling that another category

was irrelevant. State v. Craigen, 296 Or App 772, 773, 778-80, 439 P3d 1048

(2019) (Craigen II). The court recognized both that the record regarding the rele-

vance of the evidence could develop differently on remand and that there could be

other bases for excluding the evidence. Id. at 779-80. Therefore, the court stated

that its holdings were without prejudice to further development of the record on

remand in light of Zielinski. Id. at 780.

Cite as 370 Or 696 (2023) 703

The state petitioned for review. At the time, the

Court of Appeals decision in Savinskiy I, which also involved

an investigation into uncharged crimes when the defen-

dant was represented by counsel on charged crimes, was on

review. We subsequently issued our decision in that case,

State v. Savinskiy, 364 Or 802, 441 P3d 557, adh’d to as mod-

ified on recons, 365 Or 463, 445 P3d 307 (2019) (Savinskiy II),

in which we held that the questioning there did not violate

the defendant’s right to counsel because it concerned a “new,

uncharged and ongoing conspiracy to illegally undermine

the pending charges.” Id. at 807. Thereafter, we allowed

review in this case, vacated the Court of Appeals’ decision,

and remanded the case to the Court of Appeals for reconsid-

eration in light of Savinskiy II. State v. Craigen, 365 Or 721,

453 P3d 551 (2019) (Craigen III).

On remand, the Court of Appeals first considered

whether, under Savinskiy II, the questioning in this case

violated defendant’s right to counsel. State v. Craigen, 311

Or App 478, 483, 489 P3d 1071 (2021) (Craigen IV). For

two reasons, the court concluded that Savinskiy II did not

change the law in a way that affected its prior holding. Id.

at 483-84. First, the court explained that, in Savinskiy II,

this court “placed a great deal of emphasis on the fact that

the rule it was announcing applied to questioning about a

crime believed to be ongoing,” and that emphasis indicated

that this court “intended the rule * * * to apply in those lim-

ited circumstances.” Id. Second, the court pointed out that

allowing the type of questioning at issue in this case

“would largely nullify the clear rule of law announced in

State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983): ‘Once

an attorney is appointed or retained, there can be no inter-

rogation of a defendant concerning the events surrounding

the crime charged unless the attorney representing the

defendant on that charge is notified and afforded a reason-

able opportunity to attend.’ ”

Id. at 484. Therefore, the court adhered to its holding that

the detectives had violated defendant’s right to counsel

when they continued to question him, without notifying his

counsel, after it was reasonably foreseeable that doing so

would lead to incriminating evidence on the FIP charges.

Id. at 484-85; see Craigen I, 295 Or App at 19 (so holding).

704 State v. Craigen

The Court of Appeals also adhered to its holding

that the trial court had erred in failing to suppress the

evidence resulting from the violation of defendant’s right

to counsel. Craigen IV, 311 Or App at 484-85. The court

explained that Savinskiy II did not affect that holding,

because, in Savinskiy II, this court had held that the ques-

tioning at issue did not violate the defendant’s right to coun-

sel and, therefore, this court had not addressed whether

evidence resulting from a violation of a defendant’s right to

counsel must be suppressed. Id. at 485.

Finally, the Court of Appeals adhered to its holding

that the error was harmful as to defendant’s murder convic-

tion. Id. Therefore, the court again reversed that conviction

and remanded the case for resentencing. Id.6

II. ANALYSIS

A. Relevant Law

Article I, section 11, of the Oregon Constitution

provides, “In all criminal prosecutions, the accused shall

have the right * * * to be heard by himself and counsel[.]”

The right to counsel is essential in our adversarial system

of criminal law. Criminal prosecutions can carry great con-

sequences, and criminal proceedings can be complex. The

state utilizes trained professionals to represent its interests

in prosecutions, and Article I, section 11, guarantees defen-

dants the right to do the same.7 Sparklin, 296 Or at 93 (“The

constitutional right to counsel is meant to counteract the

6

On remand from this court to the Court of Appeals, the parties filed supple-

mental briefs regarding whether the trial court’s erroneous exclusion of evidence

of defendant’s “personal characteristics,” in and of itself, presented a basis for

reversal. In addition, after the decisions in Ramos v. Louisiana, 590 US ___, 140

S Ct 1390, 206 L Ed 2d 583 (2020), and State v. Ulery, 366 Or 500, 464 P3d 1123

(2020), defendant filed a supplemental brief seeking reversal of his conviction

on Count 5, obliteration or change of identification number on a firearm, on the

ground that it was based on a nonunanimous jury verdict. On the first issue, the

Court of Appeals held that defendant had failed to establish that the trial court’s

evidentiary error was harmful. Craigen IV, 311 Or App at 485. But the court

stated, as it had in Craigen II, 296 Or App at 780, that its holding did not preclude

further development of the record on remand. Craigen IV, 311 Or App at 485-86.

On the second issue, the court held that it was plain error for the trial court to

accept the jury’s nonunanimous verdict on Count 5. Id. at 486. Consequently, the

court reversed that count as well. Id.

7

As the United States Supreme Court explained regarding the right to coun-

sel under the Sixth Amendment of the United States Constitution:

Cite as 370 Or 696 (2023) 705

handicaps of a suspect enmeshed in the machinery of crim-

inal process.” (Internal quotation marks omitted.)).

The Article I, section 11, right to counsel is an indi-

vidual right. The right exists so that, when the state exer-

cises its prosecutorial powers against a person, the person

can call on counsel to assert and protect the person’s rights.

As such, it is a particularly important right, one through

which other rights are given effect, including the state con-

stitutional rights to be free from unreasonable searches and

seizures and compelled self-incrimination, Or Const, Art I,

§§ 9, 12, as well as the rights to be tried by an impartial

jury, to meet witnesses face to face, and to have compulsory

process for obtaining witnesses, Or Const, Art I, § 11.

Although the Article I, section 11, right to counsel

is an individual right, it benefits the criminal legal system

and the public in general. The state constitutional rights

of individuals, including the right to counsel, help ensure

that the state abides by the legal limits on its authority, that

criminal proceedings are fair, and that verdicts are reliable.

Thus, although they are individual rights, they help pre-

serve the rule of law and the integrity of the legal system.

The Article I, section 11, right to counsel was “orig-

inally understood to apply only to the conduct of criminal

trials.” Prieto-Rubio, 359 Or at 24. That was because trial

was where “the primary confrontation between state and

individual occurred.” Sparklin, 296 Or at 92 n 9. But over

time the nature of law enforcement and criminal prosecu-

tions changed and the point at which an individual first

confronted “the amassed power of the state * * * moved back

“[R]eason and reflection require us to recognize that in our adversary sys-

tem of criminal justice, any person haled into court, who is too poor to hire

a lawyer, cannot be assured a fair trial unless counsel is provided for him.

This seems to us to be an obvious truth. Governments, both state and fed-

eral, quite properly spend vast sums of money to establish machinery to try

defendants accused of crime. Lawyers to prosecute are everywhere deemed

essential to protect the public’s interest in an orderly society. Similarly, there

are few defendants charged with crime, few indeed, who fail to hire the best

lawyers they can get to prepare and present their defenses. That government

hires lawyers to prosecute and defendants who have the money hire lawyers

to defend are the strongest indications of the widespread belief that lawyers

in criminal courts are necessities, not luxuries.”

Gideon v. Wainwright, 372 US 335, 344, 83 S Ct 792, 9 L Ed 2d 799 (1963).

706 State v. Craigen

in the process from trial to the police stage.” Id. (internal

quotation marks omitted). The change “ ‘tended to generate

pretrial events that might appropriately be considered to be

parts of the trial itself.’ ” Prieto-Rubio, 359 Or at 24 (quoting

United States v. Ash, 413 US 300, 310, 93 S Ct 2568, 37 L Ed

2d 619 (1973)). In light of the change, this court has ruled

that the Article I, section 11, right to counsel applies “to

those stages of a criminal proceeding ‘when [a defendant]

must take steps or make a choice which is likely to have a

substantial effect on the prosecution against him.’ ” Prieto-

Rubio, 359 Or at 25 (quoting State v. Miller, 254 Or 244, 249,

458 P2d 1017 (1969) (alteration in Prieto-Rubio)).

Regarding the investigative stage of a criminal pro-

ceeding, this court has recognized that “the right to an attor-

ney during the investigative stage is at least as important as

the right to counsel during the trial itself.” Sparklin, 296 Or

at 92 n 9. In keeping with that recognition, this court has

ruled that a defendant has the right to have counsel pres-

ent at certain pretrial events. Id. at 93-94. As this court has

explained, pretrial events like interrogations, line-ups, poly-

graph sessions, and psychiatric examinations “are investiga-

tive tools by means of which the state builds its case” against

a defendant, and, in order to preserve counsel’s effectiveness

and the fairness of trial, the defendant has a right to have

counsel present at those events. Id. at 94; Savinskiy II, 364 Or

at 820 (to protect a defendant’s right to counsel, courts must

recognize that evidence obtained in pretrial confrontations

between the state and the defendant, outside the presence of

defense counsel, can undermine counsel’s effectiveness and

the fairness of trial); see also State v. Gray, 370 Or 116, 132,

515 P3d 348 (2022) (holding that, under Article I, section 11,

a defendant has a right to have counsel present when he tes-

tifies before a grand jury because the opportunities for prej-

udice are “manifest” in that the defendant “might waive an

evidentiary privilege by failing to claim it, or he might make

statements against interest, or he might present testimony

in a way that contradicts (or seemingly contradicts) any later

testimony at trial”).

As to interrogations, in Sparklin, this court ruled,

“Once an attorney is appointed or retained, there can be

no interrogation of a defendant concerning the events

Cite as 370 Or 696 (2023) 707

surrounding the crime charged unless the attorney repre-

senting the defendant on that charge is notified and afforded

a reasonable opportunity to attend.” 296 Or at 93. As this

court explained,

“[i]n the smallest civil matter an attorney and his or her

investigator are restricted in their contact with a repre-

sented party. We can certainly require no less of prose-

cutors or police in criminal matters. A defendant may, of

course, volunteer statements, but this must be on his own

initiative and not in response to questioning.”

Id. (footnote omitted).

The Article I, section 11, restriction on the interro-

gation of a represented defendant protects the defendant’s

relationship with counsel. “To permit officers to question a

represented suspect in the absence of counsel encourages

them to undermine the suspect’s decision to rely upon coun-

sel. Such interrogation subverts the attorney-client rela-

tionship.” Sparklin, 296 Or at 93 (internal quotation marks

omitted). It conveys to the defendant that counsel will not

be made available, and that message can cause a defendant

to believe either that he does not have the right to have his

counsel present or that the officers will not honor his rights.

In turn, those beliefs can cause the defendant not to assert

his rights.

The Article I, section 11, right to have counsel pres-

ent at an interrogation applies regardless of whether the

defendant asks for counsel to be present. Sparklin, 296 Or

at 93. That is so because, once a person is charged with a

crime, the person “is entitled to the benefit of an attorney’s

presence, advice and expertise in any situation where the

state may glean involuntary and incriminating evidence

or statements for use in the prosecution of its case against

defendant.” Id. at 93; see also Prieto-Rubio, 359 Or at 27

(quoting Sparklin, 296 Or at 93); Savinskiy II, 364 Or at 818

(same). Moreover, once a defendant has counsel, the defen-

dant cannot waive his Article I, section 11, right to counsel

without first having an opportunity to consult with counsel.

Sparklin, 296 Or at 94.

Not only does the Article I, section 11, right include

the right to have counsel present during interrogations about

708 State v. Craigen

charged crimes, it also includes the right to have counsel

present for interrogations about certain uncharged crimes.

This court has explained the limit that Article I, section 11,

imposes on questioning about uncharged crimes in three

cases: Sparklin, Prieto-Rubio, and Savinskiy II. Because the

state, which is the petitioner on review, has focused on the

law regarding police questioning of represented defendants

about uncharged crimes, we pause to briefly describe our

case law on that issue.

As relevant here, in Sparklin this court indicated

that police questioning of represented defendants about

uncharged crimes violates a defendant’s Article I, section 11,

right to counsel when the uncharged crimes are related

to the charged crimes. 296 Or at 87, 98 (stating, in dicta,

that, because the defendant had been arraigned on, and

was represented on, a forgery charge based on the use of a

stolen credit card, police questioning about the uncharged

assault and robbery during which the credit card had been

stolen was improper, even though the charged forgery and

uncharged assault and robbery occurred at different times

and in different jurisdictions and were being investigated by

different law enforcement agencies).

Later, in Prieto-Rubio, this court directly addressed

the scope of the Article I, section 11, right to counsel during

police questioning about uncharged crimes. 359 Or at 18,

36-38. This court focused on the purpose of the right, which,

it reiterated, “is to ensure that a defendant charged with a

crime has the benefit of an attorney’s presence, advice, and

expertise ‘in any situation where the state may glean invol-

untary and incriminating evidence or statements for use

in the prosecution of its case against defendant.’ ” Id. at 36

(quoting Sparklin, 296 Or at 93 (emphasis in Prieto-Rubio)).

Based on that purpose, this court established an objective,

principled rule for determining when a defendant’s Article I,

section 11, right to counsel on charged crimes includes

the right to have counsel present for questioning about

uncharged crimes, stating:

“[T]he appropriate test for determining the permissible

scope of questioning of a criminal defendant who is rep-

resented by counsel is whether it is objectively reasonably

Cite as 370 Or 696 (2023) 709

foreseeable that the questioning will lead to incriminating

evidence concerning the offense for which the defendant

has obtained counsel.”

Prieto-Rubio, 359 Or at 18; id. at 36 (same). Without such a

rule, this court concluded, “the state constitutional guaran-

tee of the right to counsel would be circumvented.” Id.

Then, in Savinskiy II, this court created a narrow

exception to the Prieto-Rubio rule. 364 Or at 819. There,

based on the specific facts of the case, this court held that,

although it was reasonably foreseeable that police question-

ing about uncharged crimes—which included conspiracies to

harm persons involved in the prosecution of the defendant’s

charged crimes—would lead to incriminating evidence of

the defendant’s charged crimes, the questioning did not vio-

late the defendant’s Article I, section 11, right to counsel

because that right “does not guarantee that the state will

provide notice to a defendant’s attorney before questioning

the defendant about a new, uncharged and ongoing conspir-

acy to harm witnesses to a pending prosecution.” Id.8

B. Application

In this case, the state frames the issue as whether

the detectives’ questioning of defendant about uncharged

crimes violated defendant’s right to counsel. It asserts that

the issue is “whether Article I, section 11, precluded the

8

In Savinskiy II, this court stated that the issue before it was whether the

questioning about “new criminal activity” violated Savinskiy’s rights, 364 Or at

804, and it explained that it was using the phrase “ ‘new criminal activity’ as a

shorthand to describe the circumstances of defendant’s post-charging conspiracy

to commit new crimes against the prosecutor and witnesses in the pending pros-

ecution.” Id. at 804 n 1. This court restated that framing clearly and repeatedly

throughout the opinion. E.g., id. at 806-07 (“[T]he question we ultimately must

answer is whether Article I, section 11, guarantees a right to counsel during

police questioning about the kind of new, uncharged criminal activity in which

defendant was engaged.” (Emphasis added.)); id. at 811 (“The issue in dispute

is whether defendant’s new criminal activity is the kind of uncharged crimi-

nal activity that falls beyond the boundary of Article I, section 11, protection.”

(Emphasis added.)); id. at 812 (noting that, by contrast, the uncharged crimes in

Prieto-Rubio “were completed before the time that the state indicted the defen-

dant” for the charged crimes); id. at 817 (referring to “investigative techniques

that capture a new crime in progress” (internal quotation marks omitted; empha-

sis added)); id. at 807 (stating its conclusion that “police were not required to pro-

vide notice to the attorney representing defendant on the pending charges before

inquiring about his new, uncharged and ongoing conspiracy to illegally undermine

the pending charges” (emphasis added)).

710 State v. Craigen

police in this case from questioning defendant about the

murder that was just committed because he was already

under indictment for a felon-in-possession offense.” The

state asks us to rule that police may question a repre-

sented defendant about uncharged crimes as long as (1) the

uncharged crimes occurred after the charged crimes and

(2) the uncharged crimes are fundamentally different from

the charged crimes. In response, defendant and amicus cur-

iae argue that the state’s rule is inconsistent with the right

to counsel because it would deny a defendant the right to the

presence, advice, and expertise of counsel in confrontations

with the state where it is reasonably foreseeable that the

state “may glean involuntary and incriminating evidence or

statements” about charged crimes. Sparklin, 296 Or at 93;

see also Prieto-Rubio, 359 Or at 36 (quoting Sparklin, 296

Or at 93); Savinskiy II, 364 Or at 818 (same). They point

out that questioning about uncharged crimes can lead to

incriminating statements about charged crimes, even if the

uncharged crimes occurred after, and are different from,

the charged crimes.

We reject the state’s framing of the issue, which

focuses on whether the detectives could question defendant

about uncharged crimes, specifically, the murder. We do so

because the detectives questioned defendant about charged

crimes, specifically the FIPs. As recounted above, after the

detectives asked defendant why he had shot Carter, defen-

dant said that he believed that Carter had set him up on

the FIP charges. After that statement, one of the detectives

immediately asked defendant about the FIP charges, specif-

ically, how defendant had come into possession of the fire-

arms he was charged with possessing. That question was

about charged crimes on which defendant was represented

by counsel. As such, it violated the Sparklin rule that, “[o]nce

an attorney is appointed or retained, there can be no inter-

rogation of a defendant concerning the events surrounding

the crime charged unless the attorney representing the

defendant on that charge is notified and afforded a reason-

able opportunity to attend.” 296 Or at 93. And, as the Court

of Appeals recognized in its decision in this case, nothing

in Savinskiy II altered that rule. Craigen IV, 311 Or App at

484. Nor could it have. The rule is a core component of the

Cite as 370 Or 696 (2023) 711

right to counsel. Sparklin, 296 Or at 93 (“Once accused has

sought the safeguard of counsel, it is unfair to let skilled

interrogators lure him from behind the shield into an

unequal encounter.” (Internal quotation marks and citation

omitted.)).9

Because the detectives violated defendant’s right to

counsel by questioning him about the FIP charges on which

he was represented, the question becomes whether the

resulting evidence had to be suppressed. Under Oregon con-

stitutional law, when the state violates an individual’s con-

stitutional right, the state cannot use evidence obtained as

a result of that violation. State v. Jones, 248 Or 428, 431, 435

P2d 317 (1967) (“If evidence is obtained as the fruit of illegal

police conduct, it may not be used in state courts.”). “This

proscription covers testimonial evidence as well as physical

evidence.” Id. at 432. The evidence must be suppressed in

order to vindicate the individual’s personal rights. State v.

Davis, 313 Or 246, 253-54, 834 P2d 1008 (1992) (so explain-

ing regarding violations of Article I, section 9). Suppression

is required “ ‘to preserve * * * rights to the same extent as if

the government’s officers had stayed within the law.’ ” Id. at

253 (quoting State v. Davis, 295 Or 227, 234, 666 P2d 802

(1983) (alteration in original)). In other words, the parties

must be restored “to their positions as if the state’s officers

had remained within the limits of their authority.” Davis,

295 Or at 237; see also State v. Simonsen, 319 Or 510, 518-

19, 878 P2d 409 (1994) (adopting rationale of Davis, 313 Or

at 253-54, and requiring suppression of evidence result-

ing from violations of Article I, section 12). Accordingly,

this court has held that “[t]he remedy for a violation of

Article I, section 11, is the exclusion of any prejudicial evi-

dence obtained as a result of that violation.” Prieto-Rubio,

359 Or at 38; State v. Spencer, 305 Or 59, 74-76, 750 P2d

147 (1988) (ruling that, under Article I, section 11, a per-

son arrested for driving under the influence of intoxicants

has the right, upon request, to a reasonable opportunity

9

Because the detectives asked defendant about charged crimes on which he

was represented by counsel, we need not address the state’s argument that we

should alter the law regarding the Article I, section 11, limits on police question-

ing of a represented defendant about uncharged crimes. Accordingly, we adhere

to law set out in Sparklin, Prieto-Rubio, and Savinskiy II.

712 State v. Craigen

to consult with counsel before deciding whether to submit

to a breath test and that a violation of that right requires

suppression of the breath-test result); State v. Dinsmore,

342 Or 1, 10, 147 P3d 1146 (2006) (following Spencer and

holding that a breath-test result obtained as a result of a

violation of Article I, section 11, was “inadmissible for all

purposes”).

If officers violate a defendant’s state constitutional

rights and the defendant establishes a minimal factual

nexus between the violation and the subsequent discovery of

evidence, the evidence must be suppressed unless the state

shows that the evidence did not result from that violation.

State v. Thompson, 370 Or 273, 289, 518 P3d 923 (2022). The

state can do so by showing one of three things: that the evi-

dence was discovered through an independent source, that

the evidence would have been inevitably discovered, or that

the discovery of the evidence was so attenuated from the

violation as to dissipate the taint of the unlawful conduct.

Id. at 291.

In this case, the state does not contend that it has

made such a showing. Therefore, like the Court of Appeals,

we conclude that the trial court erred in denying defendant’s

motion to suppress.

In arguing against that conclusion, the state does

not directly address whether the detectives’ questioning

about the charged FIPs requires suppression of the evidence

at issue. Instead, the state makes an argument based on

the premise that the questioning at issue was about the

uncharged murder. It argues that the detectives did not

violate defendant’s right to counsel when questioning him

about the uncharged murder because defendant’s right to

counsel had not yet attached to that crime. The state’s focus

on whether defendant’s right to counsel had attached to the

uncharged murder is misdirected. It is undisputed that

defendant’s right to counsel had attached to the FIP charges

when the detectives questioned him about those charges in

contravention of the Sparklin rule. That questioning vio-

lated defendant’s right to counsel on the FIP charges, and

that violation requires suppression of the evidence that the

state obtained as a result.

Cite as 370 Or 696 (2023) 713

The state seems to suggest that, even though the

detectives violated defendant’s right to counsel on the FIP

charges, the state can use evidence resulting from that vio-

lation in its prosecution of the murder charge. But that is

inconsistent with Oregon’s exclusionary rule, under which

parties are to be restored “to their positions as if the state’s

officers had remained within the limits of their authority.”

Davis, 295 Or at 237; see also Dinsmore, 342 Or at 10 (evi-

dence resulting from a violation of Article I, section 11, is

“inadmissible for all purposes”). The state cannot bene-

fit from a violation of a defendant’s constitutional rights.

Therefore, evidence resulting from the violation of defen-

dant’s right to counsel on the charged FIPs—including evi-

dence of the uncharged murder—had to be suppressed. The

trial court erred in ruling otherwise.

Because the trial court failed to suppress the evi-

dence, and because the admission of the evidence was prej-

udicial as to defendant’s murder conviction, reversal of that

conviction is required.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is affirmed in part and

reversed in part, and the case is remanded to the circuit

court for further proceedings.