State v. Delong

No. 23 June 18, 2015 365

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

WILLIAM RICK DELONG,

Respondent on Review.

(CC 09CR1050FE; CA A146907; SC S062176)

En Banc

On review from the Court of Appeals.*

Argued and submitted October 8, 2014, at Bend Senior

High School, Bend, Oregon.

Michael A. Casper, Deputy Solicitor General, Salem,

argued the cause and filed the brief for petitioner on review.

With him on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Daniel C. Bennett, Deputy Public Defender, Salem,

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

With him on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

Shauna M. Curphy, Portland, filed the brief for amici

curiae Oregon Justice Resource Center, Albina Ministerial

Alliance Coalition for Justice and Police Reform, The

Portland Chapter of the National Lawyers Guild, Inc., and

the American Civil Liberties Union Foundation of Oregon,

Inc. With her on the brief were Sara F. Werboff and Jordan

R. Silk.

KISTLER, J.

______________

*  Appeal from Douglas County Circuit Court, Joan G. Seitz, Judge. 260 Or App

718, 320 P3d 653 (2014).

366 State v. Delong

The decision of the Court of Appeals is reversed, and the

case is remanded to the Court of Appeals for further pro-

ceedings consistent with this decision.

Brewer, J., concurred and filed an opinion.

Walters, J., dissented and filed an opinion in which

Baldwin, J., joined.

Baldwin, J., dissented and filed an opinion in which

Walters, J., joined.

Case Summary: During a traffic stop, a deputy sheriff placed handcuffed

defendant, placed him in a police car, and asked him if “there was anything that

we should be concerned about” in his car without first giving defendant a Miranda

warning. Defendant responded, “ ‘No,’ and that if [the deputies] wanted to search

the vehicle [they] could.” The search resulted in the discovery of methamphet-

amine and drug paraphernalia and, after the deputies read defendant a Miranda

warning, defendant gave incriminating statements. Defendant moved to sup-

press the physical evidence during the search and the statements that he later

made on the ground that that evidence was the product of the earlier Miranda

violation. The trial court denied the motion. The Court of Appeals reversed.

Held: (1) voluntary consent to search can attenuate the taint of failing to give a

Miranda warning in violation of Article I, section 12, of the Oregon Constitution;

(2) in determining whether an invitation to search breaks the causal connection

between a Miranda violation and subsequently obtained physical evidence, the

nature of the illegality, the character of the consent, and the causal relationship

between the two will bear on whether the physical evidence is attenuated from

the violation.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals for further proceedings consistent with this decision.

Cite as 357 Or 365 (2015) 367

KISTLER, J.

During a traffic stop, a deputy sheriff placed defen-

dant in custody and then asked him, without first advis-

ing him of his Miranda rights, “if there was anything we

should be concerned about” in his car. Defendant “told [the

deputy] ‘no,’ and that if we wanted to search the vehicle, we

could.” On appeal, the state conceded that the deputy vio-

lated Article I, section 12, of the Oregon Constitution when

he asked defendant that question without first advising him

of his Miranda rights. The state argued, however, that the

physical evidence that the deputies later found in defendant’s

car did not “derive from” the Miranda violation. The Court

of Appeals disagreed. State v. Delong, 260 Or App 718, 320

P3d 653 (2014). Relying on State v. Vondehn, 348 Or 462,

236 P3d 691 (2010), the Court of Appeals reasoned that both

defendant’s offer and the resulting evidence derived from

the violation. Having allowed the state’s petition for review,

we reverse the Court of Appeals decision and remand this

case to the Court of Appeals.

Sergeant Robeson worked for the Douglas County

Sheriff’s office.1 One evening, while Robeson was on patrol,

defendant’s car pulled out in front of Robeson. Apparently

noticing Robeson’s marked patrol car behind him, defendant

“immediately pulled off” into a store parking lot. Robeson

continued driving, went around the corner, and pulled over

to the side of the road to see if defendant would resume

driving once Robeson passed by. “[A] few seconds later,”

defendant drove past Robeson. In doing so, defendant con-

firmed Robeson’s suspicion that he had been trying to avoid

Robeson, and he also gave Robeson the opportunity to see

that he was not wearing a seat belt.

Robeson stopped defendant for that traffic violation.

See ORS 811.210 (requiring that drivers wear seat belts). He

approached defendant’s car and asked him for his driver’s

license, registration, and proof of insurance. Defendant gave

Robeson his name but could not produce a driver’s license

or other picture identification. Driving without a license

is a traffic offense; however, it is a defense to that charge

1

We take the facts from the hearing on defendant’s suppression motion and

state them consistently with the trial court’s ruling.

368 State v. Delong

that the driver in fact had a valid license. See ORS 807.570.

Robeson sought to determine defendant’s identity so that he

could see if defendant in fact had a valid license. Robeson

also wanted to identify defendant to see if there were a rea-

son why defendant apparently had sought to avoid him; spe-

cifically, Robeson wanted to see if there were an outstanding

warrant for defendant’s arrest.

There was a passenger in defendant’s car, and

Robeson removed defendant from his car, frisked and hand-

cuffed him, and put him in the backseat of the patrol car

before asking him some background questions to verify his

identity.2 At that point, Robeson had not advised defendant

of his Miranda rights. After asking some questions regard-

ing defendant’s identity, Robeson asked defendant “if there

was anything we should be concerned about” in his car.3 In

response to that question, defendant “told [Robeson] ‘no,’ and

that if we wanted to search the vehicle, we could.”4 Robeson

relayed that response to another deputy, who had arrived

at the traffic stop. The second deputy searched defendant’s

car and found what appeared to be marijuana residue in

an ashtray underneath the driver’s seat. He then opened a

canvas fanny pack that was inside the car, where he found

methamphetamine and drug paraphernalia. At that point,

the second deputy advised defendant of his Miranda rights.

Defendant stated that he understood his rights and then

2

Robeson testified at the suppression hearing that he separated defendant

from the passenger so that she could not conform her answers to defendant’s. At

the suppression hearing, defendant did not challenge Robeson’s decision to hand-

cuff him. Perhaps for that reason, neither the state nor defendant asked Robeson

about the circumstances that led him to do so.

3

Justice Baldwin’s dissent states that “Robeson questioned [defendant]

about illegal activity unrelated to the stop without first warning him that he had

a right to remain silent.” 357 Or at ___ (Baldwin, J., dissenting). Justice Walters’

dissent contains a similar statement. To the extent that the dissents suggest that

Robeson asked defendant something other than (1) questions about defendant’s

identity and (2) “if there was anything [the deputies] should be concerned about”

in defendant’s car, that suggestion does not appear consistent with the record.

4

Defendant, for his part, denied that he “volunteer[ed]” that Robeson could

search his car. However, he agreed that he consented to a search of his car.

Defendant testified that Robeson asked him,”[I]f he could search—if I minded if

he searched the vehicle.” Defendant testified that he “told [Robeson] I don’t care

but I got a whole bunch of stuff in the trunk of the car. You know, ‘I’d like you to

put it back when you’re done.’ ”

Cite as 357 Or 365 (2015) 369

acknowledged that the methamphetamine and drug para-

phernalia were his.

Before trial, defendant moved to suppress both the

physical evidence found during the search of his car and the

statements that he made afterwards on the ground that the

deputies had unlawfully extended the stop. At the hearing on

that motion, defendant raised another ground for suppress-

ing that evidence. He argued that, when Robeson asked him

if there were anything he should be concerned about in the

car, Robeson violated his state and federal Miranda rights.5

In the trial court, the state responded that Robeson’s

question did not constitute interrogation. In the state’s view,

that question was no different from the background ques-

tions regarding identity that had preceded it. The trial court

denied defendant’s suppression motion. It ruled that the dep-

uties had not unlawfully extended the stop, and it agreed

with the state that Miranda warnings were not required,

apparently on the ground that Robeson’s question had not

constituted interrogation. The trial court accordingly denied

defendant’s suppression motion and ruled that the physical

evidence found in defendant’s car and the warned state-

ments that he made to the second deputy were admissible

at his trial. Considering that and other evidence, the jury

found defendant guilty of possessing methamphetamine.

On appeal, defendant challenged the trial court’s

ruling on his suppression motion. He argued that, once

Robeson placed him in the back of his patrol car and hand-

cuffed him, Article I, section 12, required Robeson to advise

him of his Miranda rights before asking him whether there

was anything in his car that should concern the deputies.6

The state, in response, conceded that Robeson had violated

5

Defendant did not argue in the trial court that the previous questions that

Robeson asked regarding defendant’s identity constituted interrogation or that,

in asking those questions, Robeson had violated his Miranda rights. Cf. State v.

Cunningham, 179 Or App 498, 501, 40 P3d 535 (2002) (explaining that the federal

definition of interrogation, which this court adopted for the purposes of Article I,

section 12, contains an exception for questions “normally attendant to arrest and

custody”).

6

Defendant also argued that, even if he invited the deputies to search his

car, the scope of his consent did not extend to opening the fanny pack in his car,

where the deputies found methamphetamine and drug paraphernalia. The Court

of Appeals did not reach that issue, and the parties have not briefed it on review.

370 State v. Delong

Article I, section 12, of the Oregon Constitution when he

asked defendant that question without first advising him

of his Miranda rights. The state argued, however, that,

because defendant’s invitation to search his car attenuated

the taint of the Miranda violation, the physical evidence

that the deputies discovered in the car was not the product

of the violation.

The Court of Appeals held that Article I, section 12,

required Robeson to advise defendant of his Miranda rights

before asking him if there was anything in the car that should

concern the deputies. Delong, 260 Or App at 724. It also held

that the physical evidence the deputies found in defendant’s

car “derived from” that violation under this court’s decision

in Vondehn. Id. at 726-27. The court reasoned that Robeson

“exploited, or took advantage of, the Article I, section 12,

violation to obtain [defendant’s] consent; he offered consent

during a custodial interrogation while denying any wrong-

doing.” Id. at 727. The court accordingly held that the trial

court should have suppressed the physical evidence discov-

ered in defendant’s car and the statements that defendant

made after receiving Miranda warnings.

We allowed the state’s petition for review to con-

sider whether, under Article I, section 12, the physical

evidence that the deputies discovered in defendant’s car

“derived from” the earlier Miranda violation. See Vondehn,

348 Or at 476 (stating that standard). On that issue, defen-

dant argues that, because his invitation to search his car

was the foreseeable result of the deputy’s unwarned ques-

tion, the evidence that the deputies found in his car derived

from that Miranda violation and should be suppressed. The

state responds that, because Miranda is a judge-made rule

and not a constitutional right, we should suppress only the

evidence that resulted directly from the Miranda violation.

In the state’s view, we should not suppress the evidence that

resulted directly from a Miranda violation and the “fruit of

the poisonous tree,” as we ordinarily do for state constitu-

tional violations.7 Alternatively, the state argues that, even

7

The fruit of the poisonous tree has been defined as “challenged evidence

[that] is ‘secondary’ or ‘derivative’ in character,” as when “a confession is obtained

after an illegal arrest, physical evidence is located after an illegally obtained

confession, or an in-court identification is made following an illegally conducted

Cite as 357 Or 365 (2015) 371

if we suppress both the direct evidence resulting from the

Miranda violation and the “fruit of the poisonous tree,” our

Article I, section 9, cases demonstrate that the evidence that

the deputies found in defendant’s car was not the fruit of the

poisonous tree and thus did not derive from the Miranda

violation.

Our decision in Vondehn provides the starting point

for our analysis. Accordingly, we first describe that decision.

We then explain that the specific holding in Vondehn does not

control the resolution of this case. We also explain that, even

if we apply the remedial standard that we ordinarily apply

to Article I, section 9, violations, defendant’s invitation to

search his car attenuated the taint from the Miranda viola-

tion. Finally, we address defendant’s argument and the dis-

sents’ view that, even if defendant’s invitation to search his

car would be sufficient to attenuate the taint of an Article I,

section 9, violation, his invitation was not sufficient to atten-

uate the taint of an Article I, section 12, violation.

We begin with our decision in Vondehn. In that case,

the officers asked the defendant whether he owned a back-

pack found in a stopped car, whether it contained marijuana,

and whether they could search it. Vondehn, 348 Or at 484.

The defendant answered “yes” to each of those questions. Id.

Pursuant to the defendant’s consent, the officers searched

his backpack, found marijuana, advised the defendant of his

Miranda rights, and then asked him additional questions

about the marijuana that they had found. Id. at 484-85. On

review, this court held that, under Article I, section 12, the

officers should have advised the defendant of his Miranda

rights before asking him whether he owned the backpack.

Id. at 476. It held that the answers that the defendant gave

before being advised of his Miranda rights and the mari-

juana that the officers found in his backpack should have

been suppressed. Id. at 476-77. It also held, however, that

the answers that the defendant gave after being advised of

his Miranda rights should not be suppressed. Id. at 486.

Much of this court’s opinion in Vondehn focused

on the state’s argument that we should interpret Article I,

pretrial identification.” Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Orin

S. Kerr, 3 Criminal Procedure § 9.3(a) (3d ed 2007 and supp 2014).

372 State v. Delong

section 12, the same way that the plurality in United States

v. Patane, 542 US 630, 124 S Ct 2620, 159 L Ed 2d 667

(2004), would have interpreted the Fifth Amendment. See

Vondehn, 348 Or at 470 (noting the state’s reliance on the

plurality opinion in Patane).8 This court did not accept that

argument. Relying on our cases interpreting Article I, sec-

tion 12, the court explained that “the Oregon Constitution

requires Miranda warnings” and, as a result, the failure to

give those warnings, when required, is itself a constitutional

violation that requires a remedy. Id. at 475-76. The court

also rejected the state’s argument that vindicating a defen-

dant’s Article I, section 12, Miranda rights requires only

that his or her unwarned statements be suppressed. Id. It

held that Article I, section 12, also precludes the state from

using “physical evidence that is derived from [a Miranda]

violation to prosecute a defendant.” Id.

Having reached that conclusion, the court turned

to the question whether the marijuana that the officers

had found in the defendant’s backpack “derived from” the

Miranda violation in that case. On that question, the court

reasoned:

“In this court, the state makes no argument that the

request for consent to search or the seizure of the mari-

juana derived from some source other than defendant’s

answers to those unwarned questions, nor does the state

argue that, even without defendant’s responses, the police

inevitably would have obtained the marijuana. Thus, in

this case, we conclude that the marijuana derived from the

violation of defendant’s Article I, section 12, rights, and the

trial court erred in failing to exclude it from evidence.”

Id. at 476-77. The court’s conclusion that the marijuana

derived from the Miranda violation in Vondehn thus appears

8

The plurality opinion in Patane would have held that, under the Fifth

Amendment, the “mere failure to give Miranda warnings does not, by itself, vio-

late a suspect’s constitutional rights or even the Miranda rule.” 542 US at 641

(opinion of Thomas, J.). In the plurality’s view, “[p]otential violations occur, if at

all, only upon the admission of unwarned statements into evidence at trial.” Id.

The plurality reasoned that, because the mere failure to advise a suspect of his or

her Miranda rights does not violate either the Fifth Amendment or the Miranda

rule, there is no reason to apply the “fruit of the poisonous tree” doctrine to that

failure. Id. at 643-44. It followed, the plurality reasoned, that excluding state-

ments obtained in violation of Miranda from a defendant’s criminal trial is the

only remedy that the Fifth Amendment requires. Id. at 644.

Cite as 357 Or 365 (2015) 373

to have turned primarily on the absence of any argument to

the contrary. See id.; see also id. at 490 (Linder, J., concur-

ring) (reaching a similar conclusion).

The court then turned to the question whether

the statements that the defendant made after receiving

Miranda warnings should be suppressed. In analyzing that

state constitutional issue, the court employed a multifactor

test that it drew from Missouri v. Seibert, 542 US 600, 124 S

Ct 2601, 159 L Ed 2d 643 (2004), and Oregon v. Elstad, 470

US 298, 105 S Ct 1285, 84 L Ed 2d 222 (1985). Vondehn, 348

Or at 480-81. The court explained that, in considering those

factors, it was not seeking to determine whether the defen-

dant’s warned statements were the fruit of the poisonous

tree. Id. at 482.9 Rather, it was seeking to determine whether

the belated Miranda warnings were effective in ensuring

that the defendant’s decision to waive his right against self-

incrimination was knowing and voluntary. Id. Considering

those factors, the court concluded that the belated Miranda

warnings in that case had been effective. Id. at 486.

The statements that the court held admissible

in Vondehn followed belated Miranda warnings, and the

test that the court articulated (whether the belated warn-

ings were effective) applies in that circumstance. When no

belated Miranda warnings have been given, the question

whether the taint flowing from a Miranda violation has been

attenuated will vary depending on the totality of the cir-

cumstances. See State v. Jarnagin, 351 Or 703, 716, 277 P3d

535 (2012). In deciding whether the taint has been attenu-

ated, the court has considered, among other things:

“the nature of the violation, the amount of time between

the violation and any later statements, whether the suspect

remained in custody before making any later statements,

subsequent events that may have dissipated the taint of the

earlier violation, and the use that the state has made of the

unwarned statements.”

9

The court explained that

“a court does not use those circumstances to attempt to determine the psy-

chological effect that the particular police course of conduct had on the par-

ticular defendant or whether the initial failure to warn caused the particular

defendant to make the post-Miranda statements.”

Vondehn, 348 Or at 482. Rather, the test was an objective one. Id.

374 State v. Delong

Id.

With that background in mind, we turn to this case.

At first blush, the holding in Vondehn regarding the search

of the defendant’s backpack in that case would seem to con-

trol the resolution of this case. As in Vondehn, the deputies

in this case did not advise defendant of his Miranda rights

before obtaining his consent to search his car. This case dif-

fers from Vondehn, however, in at least two respects. As dis-

cussed above, this court did not have occasion in Vondehn

to explore, at any length, whether the marijuana found in

the defendant’s backpack in that case derived from the pre-

ceding Miranda violation, in large part because the state

had not argued that it did not. Here, the state has argued

that the physical evidence that the deputies found did not

derive from the Miranda violation. Moreover, as is often

true in cases such as this, the issue in this case arises in

a different factual posture from the issue in Vondehn. As

discussed below, Robeson’s unwarned question in this case

was open-ended; defendant’s direct response to the question

was exculpatory; and he invited the deputies to search his

car without an express request for consent.

We accordingly cannot say that the specific holding

in Vondehn controls our resolution of this case, and we look

instead to the factors identified in Jarnagin to determine

whether the physical evidence that the deputies found in

defendant’s car was the product of the preceding Miranda

violation. On that issue, we note that the amount of time

that passed between the Miranda violation and the discov-

ery of the physical evidence was brief. Additionally, defen-

dant remained in custody during the encounter. In those

respects, this case is similar to Vondehn. As noted above,

however, this case differs from Vondehn in other respects,

and we focus initially on the primary factual difference,

defendant’s invitation to search his car. See Jarnagin, 351

Or at 716 (explaining that, in deciding attenuation, we con-

sider, among other things, “subsequent events that may

have dissipated the taint of the earlier violation”).

When Sergeant Robeson asked defendant “if there

was anything we should be concerned about” in his car,

defendant “told [him] ‘no,’ and that if [the officers] wanted

Cite as 357 Or 365 (2015) 375

to search the vehicle [they] could.” Defendant’s answer

divides into two parts: (1) a statement that nothing in his

car should concern the officers and (2) an invitation to the

officers to search his car if they wanted to do so. The sec-

ond part of defendant’s answer can be viewed in one of two

ways: either as a volunteered response that was admissible

in defendant’s criminal trial or, even if defendant’s response

were not admissible in his criminal trial, as evidence of

attenuation that was relevant to his motion to suppress and

admissible in the hearing on that motion. Cf. State v. Wright,

315 Or 124, 131, 843 P2d 436 (1992) (explaining that the

fact that evidence is inadmissible under the evidence code

at trial does not mean that it is inadmissible in deciding a

motion to suppress).

We begin with the first way of looking at defen-

dant’s response. The trial court found that defendant had

“volunteered” the invitation to search. The concept of a vol-

unteered statement has a unique place in Miranda jurispru-

dence. In announcing the requirement that officers advise

custodial suspects of their rights before questioning them,

the United States Supreme Court was careful to recognize

that that requirement does not preclude the admission of a

defendant’s volunteered statements in his or her criminal

trial. Miranda v. Arizona, 384 US 436, 478, 86 S Ct 1602,

16 L Ed 2d 694 (1966) (“Volunteered statements of any kind

are not barred by the Fifth Amendment and their admissi-

bility is not affected by our holding today.”).

The volunteered statements that the Court dis-

cussed in Miranda were statements that a suspect made

in custody without any questioning by the police. See id.;

Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Oris

S. Kerr, 2 Criminal Procedure § 6.7(d) (3d ed 2007 and 2014

supp) (discussing volunteered statements). Other courts

have recognized that the concept also applies to nonre-

sponsive statements that a suspect makes during custodial

questioning. See LaFave et al., 2 Criminal Procedure § 6.7(d)

(discussing cases). Specifically, those courts have held that,

to the extent that a defendant’s answer is not responsive to

the officer’s question, then the answer is a volunteered state-

ment, as the Court used that term in Miranda, and admis-

sible in the defendant’s criminal trial. See id.

376 State v. Delong

In this case, defendant’s invitation to search his

car was nonresponsive in one sense. Robeson did not ask

if he could search defendant’s car. He asked if there were

anything in the car that he should be concerned about.

Defendant’s answer went beyond what Robeson had asked

and included an offer for the officers to search his car “if

[they] wanted to.” As defendant argues, however, Robeson’s

question can be viewed as prompting the second part of

defendant’s answer. See State v. Unger, 356 Or 59, 79,

333 P3d 1009 (2014) (explaining that asking a defendant

whether he had any drugs or guns in his apartment could be

viewed as prompting the defendant’s invitation to “go ahead

and look”). Viewed in that manner, the second part of defen-

dant’s answer may not be sufficiently nonresponsive to come

within the concept of a “volunteered” statement that the

Court identified in Miranda and thus may not be admissible

as evidence in defendant’s criminal trial.10

Even if we assume that defendant’s response to

Robeson’s question was not “volunteered,” as the Court used

that term in Miranda, defendant’s response still reflects a

volitional act on his part and, as such, implicates another

strand of our case law. In considering a related issue, this

court has held that similar offers are sufficient to atten-

uate the taint of an Article I, section 9, violation. State v.

Rodriguez, 317 Or 27, 854 P2d 399 (1993); State v. Kennedy,

290 Or 493, 624 P2d 99 (1981).11 The point of those cases

is not that the statement itself (the defendant’s offer) was

10

Justice Baldwin’s dissent devotes some time to explaining that defendant’s

invitation to search his car was not volunteered. We note that Robeson testified

that defendant’s invitation was “volunteered,” and the trial court expressly cred-

ited Robeson’s testimony on that point. As a factual matter, describing defen-

dant’s invitation as “volunteered” seems accurate. Of course, the legal effect of

that invitation is a separate question. And, as we explain above, we assume that

defendant’s invitation was not “volunteered” in the sense that the Court used

that term in Miranda. It follows, we think, that our difference with the dissent on

this point is not substantial.

11

The issue in those Article I, section 9, cases was whether a defendant’s

invitation to search his or her effects attenuated the taint of an unlawful seizure.

The issue in this Article I, section 12, case is whether defendant’s invitation to

search attenuated the effects of an unwarned question that followed a lawful cus-

todial seizure. Both types of cases involve situations that can influence a defen-

dant’s ability to make an independent decision. And, as the concurrence explains,

the factors that we have considered in deciding attenuation in both situations are

virtually the same.

Cite as 357 Or 365 (2015) 377

admissible in the defendant’s criminal trial. Rather, the

point is that the offer was sufficient to attenuate the taint of

the preceding constitutional violation, making subsequently

discovered evidence admissible.

This court’s decision in Kennedy illustrates that

line of cases. In Kennedy, the police approached the defen-

dant as he was leaving the Portland airport. 290 Or at 495.

Acting on information that the defendant fit a “drug smug-

gler’s profile,” the officers asked to talk to him. Id. When the

defendant asked one of the officers why they wanted to talk,

the officer explained that he “had information that led [him]

to believe that [defendant] may be carrying narcotics on his

person or in his luggage.” Id. at 496 (brackets in original).

“Defendant denied that he was carrying narcotics and said,

‘Would you like to search my luggage?’ ” Id. The court noted

that, when the defendant made that offer, the officer “had

not made any request for consent to search [the] defendant

or his luggage.” Id. During the ensuing search, the officers

found and seized a vial with cocaine residue on it. Id.

In deciding whether that evidence was the product

of an unlawful stop, this court assumed that the officers had

stopped the defendant and that they lacked reasonable sus-

picion to do so. Id. at 499. The court also recognized that the

stop was the “but for” cause of the officers’ discovery of the

evidence. Id. at 500-01. However, relying on, among other

things, the “defendant’s offer to let [the officer] search his

luggage without a prior request for consent,” the court con-

cluded that the discovery of the evidence was sufficiently

attenuated from any illegality to say that it did not derive

from it. Id. at 504-06 (explaining that the defendant’s unso-

licited offer to search was the “[m]ost importan[t]” consider-

ation in reaching its conclusion). The decision in Rodriguez

is to the same effect.12 See also State v. Crandall, 340 Or

12

In Rodriguez, state and federal officers arrested the defendant at his home.

317 Or at 29. The officers advised the defendant of his Miranda rights. Id. at 30.

In response to the question, “Do you have any drugs or guns in the house,” the

defendant replied, “No, go ahead and look.” Id. The officers did so and found a

gun, which the defendant later sought to suppress as the product of an unlawful

arrest. Similarly to Kennedy, the court accepted the state’s concession that the

arrest violated Article I, section 9. Id. at 37. The court also recognized that the

arrest was the “but for” cause of defendant’s statement, “Go ahead and look.”

Id. at 39-40. The court concluded, however, that defendant’s unsolicited offer

378 State v. Delong

645, 136 P3d 30 (2006) (defendant’s unilateral act in hid-

ing drugs under a parked car after officers unlawfully had

stopped and directed him to come over and talk to them

attenuated the taint of the unlawful stop).

In Unger, this court explained that Kennedy and

Rodriguez stand for the proposition that, “in some situations,

a defendant’s voluntary consent itself may be sufficient to

demonstrate that the unlawful conduct did not affect or had

only a tenuous connection to the evidence produced.” 356 Or

at 77-78. Unger thus reaffirmed that, when a defendant’s

consent to a search either was not affected by or was only

tenuously connected to a prior illegality, the defendant’s vol-

untary consent can be sufficient to break the causal chain.

The court identified three factors that bear on when volun-

tary consent will attenuate a prior illegality:

“That legal determination—whether, in the circumstances

of a particular case, consent has so attenuated the con-

nection between the prior illegal conduct and the evidence

obtained in the consent search—requires a court to con-

sider the illegal conduct that comprised the stop or search,

the character of the consent, and the causal relationship

between the two.”

Id. at 78.13

Regarding the first factor (the nature of the ille-

gal conduct), the state has conceded that Robeson violated

defendant’s Article I, section 12, rights when he asked him

if there were anything in his car that should concern the

deputies. That violation can hardly be characterized as

egregious, however. This was not the sort of prolonged sta-

tionhouse questioning that concerned the United States

Supreme Court in Miranda. See 384 US at 448-55 (describ-

ing interrogation techniques designed to break down a sus-

pect’s will). Robeson did not engage “in repeated efforts to

wear down [defendant’s] resistance.” See State v. Foster, 288

Or 649, 655-56, 607 P2d 173 (1980) (considering that situa-

tion) (internal quotation marks omitted); State v. Mendacino,

to search his house sufficiently attenuated the taint of the unlawful arrest and

upheld the admission of the evidence found in the ensuing search. Id. at 41-42.

13

The factors that the court identified in Unger are a subset of the factors

that the court identified in Vondehn and Jarnagin.

Cite as 357 Or 365 (2015) 379

288 Or 231, 238, 603 P2d 1376 (1980) (same). The trial court

found that only two to three minutes elapsed between the

time that Robeson stopped defendant and defendant’s invita-

tion to search his car. And other than the initial background

questions he asked, Robeson asked defendant only one ques-

tion: “[I]f there was anything we should be concerned about”

in defendant’s car.

Defendant has not argued that his response to

that question was “actually coerced” within the meaning of

Article I, section 12, nor could he reasonably do so. Similarly,

he has not argued that Robeson deliberately sought to violate

his state constitutional rights. Although Robeson’s question

went too far, his question was not dissimilar from a question

that the Court of Appeals had held falls within an exception

to the state constitutional Miranda requirement. See State

v. Cunningham, 179 Or App 498, 504, 40 P3d 535 (2002)

(asking defendant “whether he had anything that was sharp

or would hurt him” before the officer performed a lawful pat-

down search did not constitute “interrogation” as defined

by the United States Supreme Court and adopted by the

Oregon Supreme Court).14 The violation was not egregious.

The second factor we consider is the character of

defendant’s consent. As noted, defendant invited the depu-

ties to search his car if they wanted to do so. Defendant’s

invitation to search his car in this case is virtually identi-

cal to the invitations in Kennedy and Rodriquez, which this

court held attenuated the taint of the unlawful seizures in

those cases. It may be that Robeson’s question in this case

prompted defendant’s invitation to search his car, as defen-

dant argues, but the question that Robeson posed was more

open-ended and thus more benign than the officers’ state-

ments in Kennedy and Rodriguez. In Kennedy, the officer

told the defendant that they had reason to believe that he

14

We express no opinion on whether the Court of Appeals was correct in

Cunningham in applying that exception to the definition of “interrogation.”

We note the Court of Appeals decision only to observe that Robeson’s question

was similar to one that the Court of Appeals had approved. Robeson’s question

differed in two respects, however. Unlike the question in Cunningham, which

focused on harm to the officer as he carried out procedures designed to effectuate

a lawful seizure, Robeson’s question was not limited to officer safety, and it asked

about items in the car even though defendant was handcuffed and seated in the

deputy’s patrol car.

380 State v. Delong

had drugs on his person or in his luggage. 290 Or at 496. In

Rodriguez, the officer asked if the defendant had any drugs

or guns in his apartment. Rodriguez, 317 Or at 30. In this

case, Robeson asked only whether there was anything that

the deputies should be concerned about in defendant’s car.

Finally, we consider the causal connection between

the violation and defendant’s invitation. This is not a case in

which Robeson’s unwarned questioning left “ ‘little, if any-

thing, of incriminating potential * * * unsaid.’ ” See Jarnagin,

351 Or at 722 (quoting Seibert, 542 US at 616-17 (plurality

opinion)). Rather, defendant told the deputies that he did

not have anything of concern in his car before extending an

invitation to them to search his car if they wanted to. Not

only did the deputies not trade on the first part of defen-

dant’s response, but there was nothing on which to trade.

Nothing that defendant said in the first part of his response

to Robeson’s unwarned question impaired defendant’s abil-

ity to make an independent decision to invite the deputies to

search his car if they wanted to do so. In that respect, this

case is no different from Kennedy and Rodriguez. Under the

analysis in Kennedy and Rodriguez, defendant’s invitation to

search his car attenuated the taint flowing from Robeson’s

unwarned question. The evidence that the deputy found in

defendant’s car did not derive from the preceding Miranda

violation.15

Defendant and the two dissenting opinions take a

different position. They reason that, even if the invitations

to search in Kennedy and Rodriguez were sufficient to atten-

uate the taint of the Article I, section 9, violations in those

cases, defendant’s invitation in this case is not sufficient to

15

Justice Walters’ dissent compares this case to Jarnagin, where the offi-

cers obtained from defendant, during multiple extended interviews in violation of

Miranda, an explanation as to how his daughter had been injured and an agree-

ment to reenact that explanation the next morning while the officers videotaped

him. 351 Or at 718. Our holding that the resulting videotape was the product

of the earlier violations turned in large part on the fact that the defendant’s

unwarned statements formed the script that he acted out the next morning while

being videotaped. Id. We do not view the specific circumstances that we consid-

ered in Jarnagin, as the dissent appears to do, as exhausting the totality of the

circumstances that can bear on whether subsequently discovered evidence is the

product of an earlier Miranda violation. Nor do we view Jarnagin as standing for

the proposition that a defendant’s voluntary invitation to search can never atten-

uate the taint of a Miranda violation.

Cite as 357 Or 365 (2015) 381

remedy the taint of a Miranda violation. We begin with an

argument that defendant alone advances.

Defendant argues that Kennedy and Rodriguez are

inapposite because, under Article I, section 12, his invita-

tion to search his car will attenuate the taint of the Miranda

violation only if the invitation was extended with knowl-

edge of his right against self incrimination. As defendant

notes, this court stated in Vondehn that Article I, section 12,

requires Miranda warnings “to ensure that a person’s

waiver [of his or her Article I, section 12, rights] is knowing

as well as voluntary.” See Vondehn, 348 Or at 474. It follows

from that proposition, defendant contends, that, because his

invitation to search his car was made without knowledge of

his Miranda rights, that invitation should have little or no

weight in the attenuation analysis.

One difficulty with that argument is that it fails to

distinguish two separate issues. The issue in this case is

not whether defendant’s response to Robeson’s question was

knowing and thus admissible in his criminal trial. It may

not have been.16 Rather, the issue in this case is whether

defendant’s response was admissible in the hearing on his

suppression motion to determine whether the physical evi-

dence discovered in his car derived from the Miranda vio-

lation. On the latter question, defendant offers no basis for

saying that his invitation to search cannot be considered at

a suppression hearing as evidence of attenuation. Cf. Wright,

315 Or at 131 (explaining that the fact that evidence is inad-

missible under the evidence code at trial does not mean it is

inadmissible in determining a motion to suppress).

We customarily have considered a suspect’s

responses to unwarned questioning in determining whether

subsequently discovered evidence derived from or was a

product of an earlier Miranda violation. See Jarnagin, 351

Or at 722-23 (considering the defendant’s responses to

unwarned questioning in deciding attenuation); Vondehn,

16

In the trial court, defendant did not move to suppress his response to

Robeson’s question. He moved to suppress the physical evidence found in his

car and the warned statements that he later made. In any event, even if defen-

dant had moved to suppress his response to Robeson’s question and even if that

response should not have been admitted in his criminal trial, any error in admit-

ting the response was harmless.

382 State v. Delong

348 Or at 485-86 (same). For example, among the factors

that we considered in deciding attenuation in Jarnagin were

“the use that the state has made of the unwarned state-

ments” and whether “the unwarned interrogation left ‘little,

if anything, of incriminating potential * * * unsaid.’ ” See 351

Or at 716, 722 (quoting Seibert, 542 US at 616-17 (plural-

ity opinion)). Those factors necessarily entail considering a

defendant’s responses to unwarned questioning in deciding

whether subsequently discovered evidence was the product

of an earlier Miranda violation.17

Defendant advances a second argument, which both

dissents also raise. They reason that, even if defendant’s

invitation would have been sufficient to attenuate the taint

of an unconstitutional seizure, as this court held in Kennedy

and Rodriguez, something more is required to attenuate the

taint of a Miranda violation. They conclude that, because

Miranda requires warnings following an arrest and because

an arrest entails a greater level of restraint than a stop,

an event that will be sufficient to attenuate the taint of an

unlawful stop will be insufficient to attenuate the taint of

a Miranda violation. Neither defendant nor the dissenting

opinions, however, cite any case that stands for that cate-

gorical proposition. If anything, the cases that address the

issue have held that less is required to attenuate a Miranda

violation than is required to attenuate an unconstitutional

seizure. See Dickerson v. United States, 530 US 428, 440-41,

120 S Ct 2326, 147 L Ed 2d 405 (2000); Elstad, 470 US at

306; Patane, 542 US at 644-45 (Kennedy, J., concurring in

the judgment).

The United States Supreme Court explained in

Elstad that “a procedural Miranda violation differs in sig-

nificant respects from violations of the Fourth Amendment,

which have traditionally mandated a broad application of

the ‘fruits’ doctrine.” 470 US at 306. The Court accordingly

held in Elstad that the defendant’s subsequent warned state-

ments were admissible against him in his criminal trial

17

There is a suggestion in Justice Walters’ dissent that, because defendant

did not know that he had a right to remain silent, his invitation to search his car

cannot be considered in deciding attenuation. That reasoning proves too much. If

that were correct, no invitation to search following a Miranda violation could be

considered without belated Miranda warnings.

Cite as 357 Or 365 (2015) 383

without regard to whether those statements were the fruit

of his earlier admissions obtained in violation of Miranda.

See id. at 316-17; see also Seibert, 542 US at 612 n 4 (plural-

ity opinion) (same). And the Court rejected an argument in

Elstad that the degree of attenuation required to purge the

taint of coerced or compelled statements applies equally to

statements obtained as a result of a “technica[l]” Miranda

violation. 470 US at 318.

To be sure, in Elstad, the Court justified a more lim-

ited remedy for Miranda violations than Fourth Amendment

violations on the ground that Miranda was a judge-made

rule, not a constitutional right. See id. at 305-06. Since then,

however, the Court has recognized that Miranda warnings

are “constitutionally based,” but it has adhered to its con-

clusion in Elstad that Miranda violations do not require

as extensive a remedy as a Fourth Amendment violation

and that the same degree of attenuation is not required.

Dickerson, 530 US at 440-41; accord Seibert, 542 US at 612

n 4 (plurality opinion).

As we read those decisions, they adhered to the

conclusion in Elstad because of the prophylactic nature of

the Miranda right. The purpose of Miranda warnings is

“[t]o protect a person’s right against compelled testimony.”

Jarnagin, 351 Or at 713. To ensure that that right is pro-

tected, the United States and Oregon constitutions require

officers to advise suspects who are in custody or comparable

circumstances of their Miranda rights. However, this court

has never equated the point at which the Miranda right

attaches with the point at which a person’s statements are

either actually compelled or coerced. See id. at 724 (distin-

guishing statements obtained in violation of a defendant’s

Article I, section 12, right to Miranda warnings from state-

ments obtained in violation of Article I, section 12, as a result

of actual coercion). Between those two points lies a range

of circumstances that can affect whether subsequently dis-

covered evidence derives from the failure to give required

Miranda warnings.

In this case, defendant was in custody or compara-

ble circumstances, and his Miranda rights attached at that

point. The dissents would give talismanic significance to

384 State v. Delong

that fact and hold that, as a result, defendant was disabled

from inviting the officers to search his car. As we explained

in Jarnagin, however, the question whether the circum-

stances are sufficient to attenuate the taint of an officer’s

failure to give Miranda warnings will turn on the facts of

each case. 351 Or at 716. That entails a consideration of the

extent to which the nature and extent of the custodial ques-

tioning affected a suspect’s decision to invite the search.

In this case, we are hard pressed to say that the

failure to give required Miranda warnings disabled defen-

dant from making an independent decision. It is true that

defendant was in custody or comparable circumstances.

However, that is true in every case in which an officer fails

to give required Miranda warnings. Defendant was not

detained in the stationhouse for an extended period of time,

nor was he subjected to the sort of extended questioning that

caused the Court to require Miranda warnings in the first

instance. Rather, the detention was brief, only two to three

minutes the trial court found. Robeson asked only one ques-

tion that went beyond determining defendant’s identity, and

defendant’s response to that question was not inculpatory.18

Given those circumstances, we conclude that our holdings

in Kennedy and Rodriguez provide persuasive guidance for

deciding this case.

One other consideration cuts against the conclusion

that defendant urges and that the dissents would reach.

Defendant concedes in his brief on the merits that an officer

lawfully may ask a suspect who is in custody or compelling

circumstances for consent to search without first advising

the suspect of his or her Miranda rights. It follows that, if

the suspect consents and the officer finds incriminating evi-

dence in the ensuing search, that evidence will be admissi-

ble in the suspect’s criminal trial, even though the suspect

18

Justice Walters’ dissenting opinion states that the deputies “went on a fish-

ing expedition—deliberately interrogating defendant and seeking incriminating

evidence without first warning defendant of his right to remain silent and con-

sult a lawyer.” 357 Or at ___ (Walters, J., dissenting). The trial court did not

find, however, that the deputies “deliberately interrogat[ed]” defendant, nor did it

find that they were on a “fishing expedition” or “seeking incriminating informa-

tion.” What Robeson actually said to defendant (even the words that defendant

recounted) seems far milder than might appear from the dissent’s description of

the events.

Cite as 357 Or 365 (2015) 385

was in custody or compelling circumstances when he or she

consented.

If, as defendant concedes, an officer need not advise

a suspect in custody of his or her Miranda rights before ask-

ing for consent to search, it is difficult to see why a suspect

who is in custody cannot invite an officer to search. It may

be, as defendant argues, that Robeson’s question prompted

defendant’s invitation in this case. But, even if that is true,

then Robeson’s question functioned implicitly the same way

that an explicit request for consent would have, and defen-

dant points to nothing in the first part of his answer to

Robeson’s question (that there was nothing in his car of con-

cern to the deputies) that would have affected or somehow

tainted his decision to invite the deputies to search his car.

Given Kennedy, Rodriguez, and defendant’s concession, we

are not persuaded that we should automatically give less

effect to invitations to search that follow a Miranda viola-

tion than we give invitations to search that follow an unlaw-

ful seizure.

One final matter requires discussion. At trial and

on appeal, defendant argued that the deputies exceeded the

scope of his invitation when they opened a fanny pack they

found in his car, which contained methamphetamine and

drug paraphernalia. The Court of Appeals did not reach

that issue because it held that defendant’s invitation to

search his car and the resulting search were the fruit of

the Miranda violation. Because we reach a different conclu-

sion, it is necessary to resolve defendant’s argument that the

officer’s search exceeded the scope of defendant’s invitation.

The parties have not briefed that issue on review, and we

conclude that the case should be remanded to the Court of

Appeals so that it can decide that issue in the first instance.

If the Court of Appeals finds that the deputy’s search

did not exceed the scope of defendant’s invitation, then the

remaining question is whether the statements that defen-

dant made to the deputy after receiving belated Miranda

warnings were admissible. As we understand defendant’s

argument on that issue, it rests on the proposition that the

deputies unlawfully discovered the physical evidence in his

car and that, as a result, the belated Miranda warnings

386 State v. Delong

he received were not effective to render his statements

voluntary. If the deputies lawfully discovered the physical

evidence in defendant’s pack, then the physical evidence

and defendant’s warned statements presumably would be

admissible. Conversely, if the deputy’s search exceeded the

scope of defendant’s consent, then the question will be, as

it was in Vondehn, whether the belated Miranda warnings

were effective. See Vondehn, 348 Or at 485-86 (holding that

belated Miranda warnings were effective even though offi-

cers unlawfully had discovered marijuana in the defendant’s

backpack).

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings consistent with this decision.

BREWER, J., concurring.

I agree with the majority’s conclusion that the phys-

ical fruits of the invited search in this case are not suppress-

ible as a result of the admitted violation of defendant’s rights

under Article I, section 12, of the Oregon Constitution.

However, I distance myself from two aspects of the majori-

ty’s discussion of the principles governing the suppression of

evidence for violations of Article I, section 12.

First, I agree with the majority that there is no per-

suasive support for the proposition that something more is

required to attenuate the taint of a Miranda violation than a

violation of Article I, section 9. 357 Or at ___, ___. However,

I do not believe that less is required to attenuate a Miranda

violation than is required to attenuate an unconstitutional

search or seizure. Although this court has held that the two

attenuation analyses are not identical, they are animated

by similar concerns, and, in my view, the attenuation frame-

works for violations of rights under Article I, section 12,

and Article I, section 9, are structured—and ought to be

applied—in comparable terms.

To protect a person’s right against compelled self-

incrimination under Article I, section 12, this court has

held that, before questioning, law enforcement must give

Miranda warnings to a person who is in “full custody” or

in circumstances that “create a setting which judges would

Cite as 357 Or 365 (2015) 387

and officers should recognize to be ‘compelling.’ ” State v.

Jarnagin, 351 Or 703, 713, 277 P3d 535 (2012) (quoting

State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990)). When an

officer fails to give the requisite warnings, a court must sup-

press not only the statements that a suspect makes in direct

response to unwarned questioning but also evidence that

derives from that constitutional violation. State v. Vondehn,

348 Or 462, 476, 236 P3d 691 (2010).1

In Jarnagin, this court applied a totality of the cir-

cumstances test in determining whether physical or testi-

monial evidence derived from an earlier Miranda violation

must be suppressed. Jarnagin, 351 Or at 716. In doing that,

the court relied on Vondehn, 348 Or at 482, where it had

directed courts to consider “all relevant circumstances” in

deciding whether belated Miranda warnings were effec-

tive in ensuring a knowing and voluntary waiver of rights.

Among other factors, this court in Jarnagin stated that “the

nature of the violation, the amount of time between the vio-

lation and any subsequent statements, whether the suspect

remained in custody before making any later statements,

subsequent events that may have dissipated the taint of

the earlier violation, and the use that the state has made of

the unwarned statements” were proper considerations in a

“fact-intensive” inquiry. Jarnagin, 351 Or at 716-17.

The court in Jarnagin distinguished the attenua-

tion inquiry under Article I, section 12, from the attenuation

analysis under Article I, section 9:

1

In Vondehn, this court examined the basis for the requirement that law

enforcement inform people in custody of their right against self-incrimination

under Article I, section 12. The court explained that,

“[b]ecause a custodial interrogation is inherently compelling, and to ensure

the validity of a waiver of the right against self-incrimination, Article I,

section 12, requires that the police inform a person subjected to custodial

interrogation that he or she has a right to remain silent and to consult with

counsel and that any statements that the person makes may be used against

the person in a criminal prosecution. Article I, section 12, requires those

Miranda warnings to ensure that a person’s waiver is knowing as well as vol-

untary. If the police conduct a custodial interrogation without first obtaining

a knowing and voluntary waiver of the suspect’s rights, then they violate the

suspect’s Article I, section 12, rights.”

348 Or at 474.

388 State v. Delong

“Defendant argues that we should apply the particular

methodology set out in State v. Hall, 339 Or 7, 24-25, 115

P3d 908 (2005), to determine whether evidence is the prod-

uct of a Miranda violation. The Hall methodology applies to

violations of Article I, section 9. It does not apply to viola-

tions of Article I, section 12. Cf. Brown v. Illinois, 422 US

590, 602-03, 95 S Ct 2254, 45 L Ed 2d 416 (1975) (explain-

ing that the question whether a statement is the product

of a Fifth Amendment violation differs from the question

whether it is a product of a Fourth Amendment violation).

In Vondehn, we cited Hall once in describing the Court of

Appeals’ reasoning, see 348 Or at 465, but we did not cite

Hall afterwards or apply its methodology in determining

whether the physical evidence in that case derived from the

Miranda violation, see id. at 476. Similarly, we do not apply

Hall’s methodology here.”

Jarnagin, 351 Or at 717 n 9.

Despite what the court said in Jarnagin, in reaching

its decision in this case, the majority has borrowed liberally

from the attenuation analyses of consent search cases under

Article I, section 9. That, I submit, is because the analy-

ses for both types of constitutional violations are aimed at

similar concerns. Whenever the state has obtained evidence

following the violation of a defendant’s Article I, section 9,

rights, it is presumed that the evidence was tainted by the

violation and must be suppressed. State v. Unger, 356 Or

59, 84, 333 P3d 1009 (2014). The state may rebut that pre-

sumption by establishing that the disputed evidence “did

not derive from the preceding illegality.” Hall, 339 Or at 25.

When determining whether a defendant’s consent to search

derived from police misconduct, courts are to consider the

totality of the circumstances, including the temporal prox-

imity between the misconduct and the consent; the existence

of any intervening or mitigating circumstances; the nature

of the misconduct, including its purpose and flagrancy and

whether the police took advantage of it; and the volun-

tariness of the consent. Unger, 356 Or at 89-93. Although

expressed in different words, those factors closely track the

factors that the court in Jarnagin indicated are pertinent in

an Article I, section 12, attenuation analysis. In short, I do

Cite as 357 Or 365 (2015) 389

not perceive that the bar is set higher or lower for a violation

of either provision.

Second, I agree with the majority that a know-

ing waiver of Miranda rights is not required for a court to

conclude that an ensuing consent or invitation to search

is entitled to weight in the attenuation analysis. 357 Or at

___. However, I would place more explicit emphasis on the

absence of a knowing waiver as an aspect of the totality

of circumstances. The reason is simple: a person’s lack of

knowledge that he or she has a right not to self-incriminate

should raise the same rebuttable presumption that evidence

obtained in a consent search was tainted by the preceding

illegality that arises in an Article I, section 9, attenuation

analysis. In other words, a causal connection between a

Miranda violation and the discovery of challenged evidence

requires the state to establish the existence of circum-

stances that either legally or factually break that connec-

tion. See Vondehn, 348 Or at 476; see also id. at 490 (Linder,

J., concurring). To be sure, the violation casts a meaningful

shadow in the attenuation analysis even though it is not, by

itself, dispositive.

Despite my differences with the majority’s analy-

sis, I agree with the outcome that it reaches. This is a close

case. Weighing in favor of suppression are the presumption

of taint arising from the absence of warnings, the close tem-

poral proximity between the violation and the invitation to

search, the fact that defendant was handcuffed and in cus-

tody when he invited the deputy to search, and the absence

of any indication that the violation was inadvertent. For

various reasons, people in custody sometimes invite law

enforcement officers to search their persons or belongings,

even when they know that contraband is likely to be found.

We would be naive to assume that experienced law enforce-

ment officers do not understand that.

However, Article I, section 12, does not set an insur-

mountable bar to a custodial invitation to search, even when

the invitation would not have been made in the absence of

a constitutional violation. I agree with the majority that the

physical fruits of the search in this case did not derive from

the Miranda violation. The detention here was brief; only

390 State v. Delong

one impermissible question was asked; that question was

not asked coercively; and, in asking the impermissible ques-

tion, the deputy did not seek consent to search. Although

there is no evidence that defendant knew that he had the

right to remain silent, nothing prevented him—apart from

his self-accountable volition—from simply answering the

deputy’s question and leaving it at that. He did not need to

invite the deputy to search his vehicle. In the end, that fac-

tor tips the scales for me.

For the foregoing reasons, I concur.

WALTERS, J., dissenting.

This case begins with a conceded violation of the

Oregon Constitution and once again, ends without legal

consequence. See State v. Unger, 356 Or 59, 103, 333 P3d

1009 (2014) (Walters, J., dissenting). In this case, a deputy

stopped defendant for not wearing his seat belt, handcuffed

him, searched him, and placed him in the backseat of a

patrol car. The deputy then committed a blatant and con-

ceded constitutional violation when he interrogated defen-

dant about illegal activity without informing defendant that

he had a constitutional right to remain silent. Although the

government is precluded from obtaining “a criminal con-

viction through the use of evidence obtained in violation of

[constitutional] rights,” State v. Davis, 313 Or 246, 253, 834

P2d 1008 (1992) (citing State v. Davis, 295 Or 227, 666 P2d

802 (1983)), and an individual has a right to suppression

of illegally obtained evidence to preserve the individual’s

rights “to the same extent as if the government’s officers had

stayed within the law,” id., the majority holds otherwise. I

respectfully dissent.

In Unger, this court considered the appropriate

consequences when officers violate the constitution. The

defendant in that case was in his own home, not in com-

pelling circumstances or subject to interrogation, when he

consented to search. The court held that the evidence that

officers obtained as a result need not be suppressed. The

court reasoned that the fact that the officers had violated

Article I, section 9, by entering the defendant’s backyard

Cite as 357 Or 365 (2015) 391

did not affect the defendant’s decision to consent to search.

Unger, 356 Or at 92.

Unlike Article I, section 9, of the Oregon Constitution,

Article I, section 12, does not prohibit an officer from enter-

ing private property without a warrant. Rather, it applies

when an officer holds an individual in compelling circum-

stances and prohibits the officer from conducting a criminal

interrogation without first warning the detained individual

that he or she has the right to remain silent and to consult

a lawyer. Despite those differences, the question that is pre-

sented when an officer violates Article I, section 12, is the

same as the question that is presented when an officer vio-

lates Article I, section 9: Did the evidence “derive from” the

constitutional violation? See Unger, 356 Or at 80 (“[O]ur task

is to determine whether police ‘exploited’ or ‘took advantage

of’ or ‘traded on’ their unlawful conduct to obtain consent,

or—examined from the perspective of the consent—whether

the consent was ‘tainted’ because it was ‘derived from’ or

was a ‘product of’ the unlawful conduct.”); State v. Vondehn,

348 Or 462, 475-76, 236 P3d 691 (2010) (court’s task is to

determine whether evidence “derived from” an Article I, sec-

tion 12, violation).

I understand and agree with the majority and con-

currence that the principles that underlie the exclusionary

rule and its attenuation exceptions apply equally to viola-

tions of both Article I, section 9, and Article I, section 12,

and that the same factors may be relevant in deciding

whether evidence that officers obtain can be used to convict

a defendant. Delong, 357 Or at ___; id. at ___ (Brewer, J.,

concurring). However, one of those factors is the nature of

the police misconduct. Unger, 356 Or at 81. It seems to me

that an officer’s unlawful entry onto an individual’s prop-

erty when the individual is not in compelling circumstances

may have a different effect on the individual’s consent to

search than does an officer’s failure to advise an individual

held in compelling circumstances that the individual has a

right to remain silent.

In this case, for example, the deputy’s violation

of Article I, section 12, had a more direct causative effect

on defendant’s consent to search than did the violation of

392 State v. Delong

Article I, section 9, that the court considered in Unger. Here,

the deputy had handcuffed defendant and placed him in a

patrol car, when, without telling defendant that he had the

right to remain silent and to consult a lawyer, the deputy

asked him for incriminating evidence. Thus, in this case,

unlike in Unger, defendant was held in compelling circum-

stances and was entitled to information that the defendant

in Unger was not entitled to receive. And, unlike in Unger,

the majority concludes that defendant’s consent to search

derived from the deputy’s constitutional violation. As the

majority acknowledges, it was the deputy’s question and con-

stitutional violation that prompted defendant’s unknowing

response—the consent to search—and that response must

be suppressed. Delong, 357 Or at ___. Thus, although the

principles underlying the exclusionary rule are the same,

its application in this case is different from its application in

Unger and compels a different result.

Had the majority adhered to the “totality of the cir-

cumstances” analysis that it has used in past Article I, sec-

tion 12, cases and to its reasoning in Unger, it would have

suppressed not only defendant’s response to the deputy’s

question, but also the physical evidence that the deputies

obtained as a consequence of that response. Just five years

ago, this court discussed the basis for suppression of evi-

dence obtained in violation of Article I, section 12, and flatly

rejected the state’s argument that the “mere failure to pro-

vide Miranda warnings” requires only suppression of state-

ments made in response to the unwarned questions and

not suppression of the physical evidence obtained. Vondehn,

348 Or at 475-76. In Vondehn, the officer asked the defen-

dant three unwarned questions: (1) Is this your backpack?

(2) Does it contain marijuana? (3) Can I search it? The defen-

dant answered the first two questions affirmatively and, in

response to the third, voluntarily consented to the search

of his backpack. Nevertheless, the court concluded that the

trial court had been required to suppress the defendant’s

answers to all three questions and the marijuana that the

officer had obtained as a result of the defendant’s consent.

Id. at 476-77. The court held that, “[w]hen the police vio-

late Article I, section 12, whether that violation consists of

‘actual coercion’ or the failure to give the warnings necessary

Cite as 357 Or 365 (2015) 393

to a knowing and voluntary waiver, the state is precluded

from using evidence derived from that violation to obtain a

criminal conviction,” including the “physical evidence that

is derived from that constitutional violation.” Id. at 475-76.

The majority does not overrule Vondehn, but distin-

guishes it on its facts, as does the concurrence. The majority

points out that “Robeson’s unwarned question in this case

was open-ended; defendant’s direct response to the question

was exculpatory; and he invited the deputies to search his

car without an express request for consent.” Delong, 357 Or

at ___. The concurrence says that, in this case, the detention

was brief, only one question was asked and not coercively,

and the deputy did not seek consent to search. Id. at ___

(Brewer, J., concurring).

Those factual differences exist, but they are not of

consequence. An unwarned question is an unwarned ques-

tion, no matter how open ended. Defendant’s response to

the deputy’s unwarned question was of a piece, and it was

inculpatory. And defendant’s “invitation to search” was not

any less prompted by the deputy’s question than it would

have been if the deputy had asked defendant for consent. In

Unger, the court took pains to explain that there is little to

distinguish “unprompted or volunteered consent,” like that

in State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), and State

v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), from consent

that is given in response to a request for consent. Both types

of consents, the court reasoned in Unger, are “prompted by

the officer’s question about drugs and guns.” Unger, 356 Or

at 79. The more salient inquiry, the court held in Unger, is

not whether the officer sought consent, but “whether the

consent was ‘tainted’ because it was ‘derived from’ or was a

‘product of’ the unlawful conduct.” Id. at 80-81.

I agree. The question at hand is: Did defendant’s

response, which included a consent to search, derive from

the constitutional violation? “Yes,” the majority says, “it did.”

Delong, 357 Or at ___. The majority is correct. A response

to an unwarned question that is prompted by, and results

from, the question is a direct link in the causal chain, not

394 State v. Delong

independent of it. Suppression of the response—the consent

to search—should also result in suppression of the evidence

that is a product of that response.

That does not mean that Article I, section 12, sets,

as the concurrence would have it, “an insurmountable bar”

to the admission of evidence obtained pursuant to a custo-

dial consent to search. Id. at ___ (Brewer, J., concurring).

In State v. Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012),

the court considered the kinds of facts that can attenuate

a Miranda violation, and I do not oppose consideration of a

response to unwarned questions as one factor in the alterna-

tive analysis. But I do think it important to look at how we

have applied the “totality of the circumstances” test in the

past.

In Jarnagin, officers questioned the defendant

about injuries to an eight-month-old victim at the police

station and later at the hospital where the victim had been

taken. The officers did not give the defendant the required

Miranda warnings, and the defendant described his role

in the victim’s injuries. The defendant also told the offi-

cers that he would reenact those events. The next day, the

defendant participated in a video reenactment at his home.

The circumstances were not compelling—the officers did

not challenge or confront the defendant during the reenact-

ment—and the officers again did not administer Miranda

warnings. At trial, the court granted the defendant’s motion

to suppress not only the defendant’s statements at the sta-

tion and the hospital, but also the videotape.

On review in this court, the state argued that the

officers’ Miranda violations at the station and the hospital

did not require suppression of the videotape. The court dis-

agreed. The court acknowledged that a change in time and

circumstances can be sufficient to dissipate the effects of

an earlier Miranda violation and that the Miranda viola-

tions at the station and the hospital “were not flagrant.” Id.

at 717. The officers had not physically restrained the defen-

dant and had advised him that he was not under arrest. Id.

“[A]ccording to the trial court’s unchallenged ruling,” the

court explained, “the officers [had] failed to recognize that the

circumstances had become sufficiently compelling to require

Cite as 357 Or 365 (2015) 395

Miranda warnings.” Id. Nevertheless, the court required

suppression of the videotape, reasoning that the defendant

had reenacted the same events that he had described earlier

and “[n]o advice of Miranda rights had intervened to break

the causal chain.” Id. at 718. Significantly, the court did not

view the defendant’s voluntary agreement or his voluntary

participation in the reenactment as breaking the causal

chain. See id. at 719.

Neither the majority nor the concurrence rest their

conclusions on the types of facts recognized in Jarnagin as

attenuating the taint of a Miranda violation—a change in

time or circumstances, a lifting of restraints, an officer’s

failure to recognize that the circumstances were so compel-

ling that Miranda warnings were required, or the fact that

belated Miranda warnings were given. Instead, the primary

fact that the majority and concurrence deem essential is a

fact that was of no consequence in Vondehn or Jarnagin

and that pertains in virtually every instance in which a

defendant seeks to exclude evidence obtained as a result

of a “mere” Miranda violation—the fact that defendant’s

response was volitional and the deputy did not coerce defen-

dant’s response.

An officer’s coercion can, of course, make a defen-

dant’s response involuntary. See State v. Foster, 288 Or

649, 656, 607 P2d 173 (1980) (defendant’s waiver of right

to counsel not voluntary where police persisted in repeated

efforts to persuade defendant to waive right); see also State

v. Mendacino, 288 Or 231, 238, 603 P2d 1376 (1979) (later

confession inadmissible where “coercive conditions which

resulted in * * * [earlier] confessions were not effectively

removed”). But, as the court made clear in Unger, volun-

tariness alone does not necessarily make evidence obtained

in violation of the constitution admissible. 356 Or at 79.

Miranda warnings are required in circumstances that are

compelling but not coercive to ensure that a defendant speaks

not out of compulsion but as a result of a knowing, deliberate

choice. The purpose of Miranda warnings is to ensure that a

defendant knows that he or she has a right to remain silent

and to consult a lawyer. Without that information, a waiver

of rights, even a voluntary waiver, is invalid. Jarnagin, 351

396 State v. Delong

Or at 716; Vondehn, 348 Or at 476; see State v. Joslin, 332

Or 373, 386, 29 P3d 1112 (2001) (holding that defendant’s

waiver of Article I, section 12, rights, “although voluntary,

was not knowingly made and, therefore, was invalid”). Thus,

as the majority acknowledges, the failure to give Miranda

warnings demands suppression of derivative evidence even

when the consent to search is voluntary. Vondehn, 348 Or at

476-77.

In this case, even if defendant’s response to the

deputy’s unwarned interrogation, including his consent to

search, can be described as volitional, it must be suppressed

because, considering the totality of the circumstances, it

was the product of the deputy’s constitutional violation.

That conclusion also compels the conclusion that the result-

ing physical evidence must be suppressed. Both the consent

and the physical evidence are the products of the same con-

stitutional violation and, on these facts, defendant’s consent

to search cannot serve to attenuate the taint of the Miranda

violation and permit the admission of the physical evidence

any more than did the voluntary, but unknowing, consents

of the defendants in Vondehn and Jarnagin.

The only additional peg on which the majority hangs

its hat is its characterization of the Miranda violation in this

case as “not egregious.” Delong, 357 Or at ___. But why?

This is not a case in which the trial court could make an

unchallenged ruling—as did the trial court in Jarnagin—

that the deputy failed to recognize that defendant was in

compelling circumstances. Here, defendant was handcuffed

when the interrogation began, and the deputy had to know

that Miranda warnings were required. The majority does

not contend otherwise, but nevertheless terms the deputy’s

Miranda violation “not egregious,” implying that there may

be different degrees of Miranda violations. Although there

may be degrees of coercion, once coercion reaches the level at

which Miranda warnings are required, an officer must pro-

vide the information that the constitution requires. When

Miranda warnings are required, no adjectival description

can render an officer’s constitutional violation meaningless.

Finally, returning to Unger, it is important to note

that, in that case, the court cautioned that “consent that

Cite as 357 Or 365 (2015) 397

follows a random stop or seizure that lacks probable cause

or reasonable suspicion that a crime has been committed

and that is nothing more than a fishing expedition for

incriminating evidence” may be consent that is voluntary

but nevertheless so tainted that suppression is required.

356 Or at 91. Here, although the deputy had probable cause

to believe that defendant had been driving without a seat-

belt, he did not have probable cause to believe that he was

in possession of drugs. Nevertheless, the deputy handcuffed

defendant and placed him in the back seat of the police car

and went on a fishing expedition—deliberately interrogat-

ing defendant and seeking incriminating evidence without

first warning defendant of his right to remain silent and to

consult a lawyer. In Unger terms, defendant’s invitation to

search may have been voluntary, but it was nevertheless so

tainted that suppression is required.

I fear that the majority advances such police prac-

tices when it refuses to impose consequences for a deputy’s

constitutional violation. And, on the other side of the coin,

holding law enforcement officers accountable will not result

in the long-term loss of evidence. If the majority is correct

that, in circumstances like those in this case, detained

individuals give consent to search not because they lack an

understanding of their rights, but because they make a delib-

erate decision to waive those rights, then such individuals

will give consent to search even if we require law enforce-

ment officers to adhere to constitutional requirements.

In Unger, the court declined to impose a judicial con-

sequence for the officers’ constitutional violation, expressing

its expectations that officers will act within constitutional

limitations. Id. at 94. Most law enforcement officers do act

within constitutional limits and they do so most of the time.

But when they do not, it benefits neither the officers nor our

system of justice to excuse their violations by saying that

they were “not egregious.” Our system of justice depends on

the public’s respect for law enforcement. When officers do

not obey the law, the public loses respect for law enforcement

and the law—posing a danger to both. When we counsel, but

do not demand, the best from law enforcement, we imperil

both law enforcement and our system of justice.

398 State v. Delong

Judicially expressed expectations are not enough to

secure liberty. “Liberty comes not from officials by grace but

from the Constitution by right.” Maryland v. Wilson, 519 US

408, 424, 117 S Ct 882, 137 L Ed 2d 41 (1997) (Kennedy, J.,

dissenting). Because the majority retreats from principles

necessary to give effect to those rights and to protect our

system of laws and those who enforce them, I respectfully

dissent.

Baldwin, J., joins in this dissenting opinion.

BALDWIN, J., dissenting.

I respectfully disagree with the majority’s conclu-

sion that defendant’s consent to the search of his vehicle

attenuated the taint of the Miranda violation by the depu-

ties in this case. In particular, I disagree with the majori-

ty’s conclusion that defendant’s consent—given in response

to police questioning while he was in custody and in hand-

cuffs—was volunteered. I disagree with the reasoning that

the majority has used to reach its conclusion, and I am con-

cerned about how that reasoning may affect other cases in

which citizens are interrogated by law enforcement officers

under compelling circumstances in violation of their right

to remain silent under Article I, section 12, of the Oregon

Constitution.1

I.

I begin with a brief additional background. Sergeant

Robeson stopped defendant because defendant was not

wearing his seat belt while operating his automobile. After

Robeson activated his overhead lights and pulled defendant

over, defendant identified himself by name and date of birth

but did not provide Robeson with a driver’s license. Robeson

handcuffed defendant, searched him, and placed him in

the backseat of his patrol car. Robeson testified that his

purpose in taking defendant into custody was to establish

defendant’s identity. While defendant was handcuffed in

Robeson’s patrol car, Robeson questioned him about illegal

activity unrelated to the stop without first warning him that

1

Article I, section 12, of the Oregon Constitution provides, in part:

“No person shall * * * be compelled in any criminal prosecution to testify

against himself.”

Cite as 357 Or 365 (2015) 399

he had a right to remain silent. Robeson asked defendant

if there was anything in defendant’s car that the deputies

should be concerned about. According to Robeson, defendant

“told me ‘no,’ and that if we wanted to search the vehicle,

we could.” Robeson testified that the above encounter lasted

“maybe two or three minutes.” Deputy Poe searched defen-

dant’s vehicle immediately after Robeson’s conversation

with defendant and found a fanny pack that contained drug

paraphernalia and drug residue. Poe did not give defendant

Miranda warnings until after his search had disclosed the

physical evidence of drugs.

At the suppression hearing, defendant agreed that

he had told Robeson that Robeson would not find anything

in his car, but he denied that he had consented to the search

his car. The trial court found that

“during this period of time * * * is when Sergeant Robeson

initiated the conversation with the defendant about does he

have anything of concern in his vehicle, and the defendant

responded no, and then ultimately gave consent to search.

Deputy Robeson said he did not ask for consent. That it was

volunteered in a way by the defendant and the Court finds

that appears to be credible.

“* * * * *

“[I]t was after the search when Deputy Poe approached the

defendant, he gave him his Miranda rights and after giv-

ing those Miranda rights did ask extensive questions about

what he found in the car and statements—incriminating

statements were made by the defendant. The Court is find-

ing that the prior conversation about identification while

he was detained to pursue that investigation, that at that

point Miranda wasn’t needed.”

On appeal, the state conceded that the trial court

had erred and that Miranda warnings were required before

Robeson could question defendant because defendant had

been in custody and under compelling circumstances at

the time. The state nevertheless argued that suppression

of the physical evidence was not required, because, in its

view, defendant had made a spontaneous offer of consent

to search his car. Defendant argued that State v. Vondehn,

400 State v. Delong

348 Or 462, 236 P3d 691 (2010), supported his contention

that his consent (as found by the trial court), other state-

ments he had made, and the physical evidence all derived

from the Article I, section 12, violation and should have been

suppressed.

The Court of Appeals concluded that this case “is

largely governed by the principles and reasoning that the

Supreme Court set forth in Vondehn” and reversed the

trial court’s denial of defendant’s motion to suppress. State

v. Delong, 260 Or App 718, 722-23, 320 P3d 653 (2014). In

Vondehn, the defendant was likewise handcuffed, placed in

a patrol car, and briefly interrogated without the benefit of

Miranda warnings, in violation of his rights under Article I,

section 12. In response to a deputy’s question, the defendant

admitted that he owned the backpack in the car and that it

contained marijuana. The defendant consented to a search

of the backpack, marijuana was found, and the officers

then gave the defendant his Miranda warnings. This court

observed that it had long held “that the Oregon Constitution

requires suppression of statements made without the benefit

of Miranda warnings.” Vondehn, 348 Or at 472. The court

held that “the state is precluded from using evidence derived

from the violation to obtain a criminal conviction,” including

“physical evidence that is derived from that constitutional

violation.” Id. at 475-76.

This court also explained in Vondehn that the ratio-

nale for the constitutional requirement that police warn cit-

izens of their right against self-incrimination is the level of

coercion inherent in custodial interrogations. Article I, sec-

tion 12, protects citizens against the use of compelled state-

ments, because such statements do not provide an acceptable

basis for proving guilt of a crime in a civilized society. See

State v. Mendacino, 288 Or 231, 236, 603 P2d 1376 (1979)

(so stating). To give effect to that constitutional right, this

court has prohibited the state from using physical evidence

derived from an Article I, section 12, violation to prosecute

a suspect. The principles of law that this court applied in

Vondehn are highly pertinent to this case:

“Since Magee, this court consistently has held that the

Oregon Constitution requires suppression of statements

Cite as 357 Or 365 (2015) 401

made without the benefit of Miranda warnings. See, e.g.,

State v. Roble-Baker, 340 Or 631, 643-44, 136 P3d 22 (2006)

(suppressing unwarned statements made during custodial

interrogation); State v. Smith, 310 Or 1, 7, 791 P2d 836

(1990) (so stating). The full extent of the court’s discussion

of the rationale for that rule has been to state that, when

a suspect is subjected to custodial interrogation, warnings

are necessary ‘ “because of the inherent level of coercion

that exists in such interrogations.” ’ State v. Scott, 343 Or

195, 200, 166 P3d 528 (2007) (quoting State v. Joslin, 332

Or 373, 380, 29 P3d 1112 (2001)); see also State v. Meade,

327 Or 335, 339, 963 P2d 656 (1998). * * *

“* * * * *

“Article I, section 12, affords a constitutional right to

remain silent. That right is, however, subject to waiver.

Because a custodial interrogation is inherently compelling,

and to ensure the validity of a waiver of the right against

self-incrimination, Article I, section 12, requires that the

police inform a person subjected to custodial interroga-

tion that he or she has a right to remain silent and to con-

sult with counsel and that any statements that the per-

son makes may be used against the person in a criminal

prosecution. Article I, section 12, requires those Miranda

warnings to ensure that a person’s waiver is knowing as

well as voluntary. If the police conduct a custodial inter-

rogation without first obtaining a knowing and voluntary

waiver of the suspect’s rights, then they violate the sus-

pect’s Article I, section 12, rights. To give effect to those

constitutional rights, the state is precluded from using, in

a criminal prosecution, statements made in response to the

interrogation.”

348 Or at 472-74.

In applying those principles to the facts in Vondehn,

this court concluded:

“As noted, defendant was in custody, in the back seat of

a patrol car and handcuffed, when the police subjected

him to custodial interrogation. Defendant had the right to

remain silent and to advice of counsel, but the police con-

ducted their custodial interrogation without obtaining a

valid waiver of those rights. When they did so, the police

violated Article I, section 12. That constitutional violation

402 State v. Delong

requires suppression of both the answers that defendant

gave in response to, and the marijuana that the police iden-

tified and seized as a result of, that interrogation.”

Id. at 476.

II.

With that background in mind, I now explain my

disagreement with the majority’s conclusion that defen-

dant’s consent to the search of his vehicle attenuated the

taint of Robeson’s illegal questioning. The majority begins

its attenuation analysis by “not[ing] that the amount of time

that passed between the Miranda violation and the discov-

ery of the physical evidence was brief. Additionally, defen-

dant remained in custody during the encounter. In those

respects, this case is similar to Vondehn.” 357 Or at ___. The

majority does not, however, discuss the compelling nature of

the circumstances confronting defendant or give those cir-

cumstances any weight in its attenuation analysis. Not only

did defendant “remain in custody” after he was stopped for

a seat belt violation, he was searched, handcuffed, placed in

the back of a patrol car, and then basically asked by Robeson

if he had engaged in any illegal activity.2 The majority does

not consider the effect of those circumstances on defen-

dant at the time that he responded to Robeson’s unwarned

question.

The majority instead focuses on what it sees as

“the primary factual difference” between Vondehn and this

case—”defendant’s invitation to search his car.” 357 Or at

___. “When Sergeant Robeson asked defendant ‘if there was

anything we should be concerned about’ in his car, defendant

‘told [him] “no,” and that if [the deputies] wanted to search

the vehicle [they] could.’ ” Id. Although defendant’s response

2

The majority acknowledges that Robeson’s question “went too far” and

states that his question “was not limited to officer safety.” 357 Or at___, ___.

Because defendant had already been searched and handcuffed at the time that

Robeson questioned him, however, officer safety would not appear to be an issue

at all. Rather, based on the circumstances and the substance of Robeson’s ques-

tion, it appears that Robeson’s sole purpose in asking the question was to elicit

incriminating information from defendant. See Rhode Island v. Innis, 446 US

291, 300-01, 100 S Ct 1682, 64 L Ed 2d 297 (1980) (holding that “the Miranda

safeguards come into play whenever a person in custody is subjected to * * * any

words or actions on the part of the police * * * that the police should know are

reasonably likely to elicit an incriminating response from the suspect”).

Cite as 357 Or 365 (2015) 403

to the unwarned question was immediate and directly per-

tained to the deputy’s question, the majority sharply breaks

the response into two parts, giving great weight to what it

characterizes as defendant’s “invitation” to search his car.

Notwithstanding the compelling circumstances confronting

defendant, the majority views the “invitation” to search as

spontaneous and in no way causally related to those circum-

stances or to the deputy’s illegal conduct. The majority con-

cludes that defendant’s consent was “volunteered.” 357 Or at

___.3 Thus, the majority ultimately views defendant’s con-

sent as representing a complete break in the causal chain

between the taint of the Miranda violation and the physical

evidence obtained from the consent search.

In my view, the majority’s conclusion that defen-

dant’s consent to search was volunteered is inconsistent

with the weight of pertinent case law. As the majority notes,

Professor LaFave identifies two types of statements that

properly may be considered “volunteered” in the Miranda

context: (1) statements that are not prompted by police ques-

tioning, and (2) statements that are nonresponsive to a police

officer’s question. 357 Or at ___ (citing Wayne R. LaFave

et al., 2 Criminal Procedure § 6.7(d) (3d ed 2007 and 2014

supp) (discussing volunteered statements)). The majority

appears to implicitly concede that defendant’s statements did

not fall into the category of unprompted statements. Rather,

the majority posits that defendant’s statement that the dep-

uties could search his car was nonresponsive because his

answer to Robeson’s question “went beyond what Robeson

had asked and included an offer for the officers to search his

car.” 357 Or at ___

The cases that Professor LaFave cites for the prop-

osition that a nonresponsive statement may be considered

volunteered, however, do not support the majority’s posi-

tion. Those cases primarily involved suspects who had made

incriminating statements that were wholly unrelated to the

3

I have great difficulty viewing a consent to search given by a suspect in

custody, in handcuffs, and in response to police questioning as a “volunteered”

act. A “volunteer” is a “voluntary actor or agent in a transaction; * * * [s]omeone

who gratuitously and freely confers a benefit on another.” Black’s Law Dictionary

1807 (10th ed 2014). For me, to characterize defendant’s consent, if we are to call

it that, as “volunteered” under the compelling circumstances confronting defen-

dant strains the meaning of that word to a breaking point.

404 State v. Delong

questions asked by the police or that were not a product of

unwarned interrogation. See, e.g., United States v. Crisolis-

Gonzalez, 742 F3d 830, 836-37 (8th Cir 2014) (the defen-

dant’s statement that he had a gun under his mattress was

volunteered, because that statement was “wholly unrelated”

to law enforcement agent’s inquiry into his immigration sta-

tus); United States v. Woods, 711 F3d 737, 741 (6th Cir 2013)

(the defendant volunteered the “unexpected and unrespon-

sive reply” that he had a weapon in his car when asked by

officer what object was in his pocket); United States v. Fleck,

413 F3d 883, 893 (8th Cir 2005) (when the officer asked the

defendants “how they liked the food” in the county jail, the

officer’s question was not “calculated to elicit an incrim-

inating response” from the defendants); United States v.

Castro, 723 F2d 1527, 1530-31 (11th Cir 1984) (when law

enforcement agent asked the defendant, “What in the world

is going on here?”, the defendant’s subsequent offer to bribe

the agent was a “spontaneously volunteered” statement that

was “totally unresponsive” to the agent’s question).

In contrast to the above cases, the state has con-

ceded that Robeson’s question whether “there was anything

[the deputies] should be concerned about” in defendant’s

car constituted a Miranda violation. Moreover, defendant’s

statements that nothing in his car should concern the depu-

ties and that they could search his car were made in direct

response to that unwarned question. Accordingly, because

defendant’s statements were both prompted by and made in

response to Robeson’s question, I would conclude that defen-

dant’s consent to search in this case may not properly be

considered “volunteered.”

In determining that defendant’s consent attenuated

the taint of the Miranda violation, the majority relies on State

v. Unger, 356 Or 59, 333 P3d 1009 (2014), a case recently

decided by this court in which police officers trespassed into

the defendant’s backyard in violation of his privacy rights

protected by Article I, section 9, of the Oregon Constitution.

In that case, the officers knocked on the back door of the

defendant’s residence, and the defendant consented to the

entry into and the search of his residence. The defendant

was not physically restrained by handcuffs or otherwise

Cite as 357 Or 365 (2015) 405

subjected to compelling circumstances. Thus, no Miranda

warnings were required or at issue in Unger. The majority

cites Unger as “reaffirm[ing] that, when a defendant’s con-

sent to a search either was not affected or was only tenuously

connected to a prior illegality, the defendant’s voluntary con-

sent can be sufficient to break the causal chain [between the

illegality and the evidence obtained in the consent search].”

357 Or at ___. The majority does not explain, however, why

the attenuation analysis in Unger—an Article I, section 9,

case—should apply in an Article I, section 12, case in which

a suspect was not given his Miranda warnings before he

consented to a search under compelling circumstances.

Moreover, in applying Unger, the majority again disregards

the effect of the compelling circumstances confronting defen-

dant as a causal factor in producing defendant’s consent and

the physical evidence obtained in the consent search. In my

view, Unger does not provide a readymade answer to how

this court should conduct an attenuation analysis under the

circumstances of this case.

In relying on Unger, the majority applies three fac-

tors identified in that case that it thinks bear on when a

consent to search will attenuate the illegality of a Miranda

violation:

“That legal determination—whether, in the circumstances

of a particular case, consent has so attenuated the con-

nection between the prior illegal conduct and the evidence

obtained in the consent search—requires a court to con-

sider the illegal conduct that comprised the stop or search,

the character of the consent, and the causal relationship

between the two.”

Unger, 356 Or at 78. First, the majority considers the illegal

conduct of law enforcement. Again, no consideration is given

to the compelling circumstances confronting defendant when

he consented to the search. Instead, the majority observes

that the violation of defendant’s Miranda rights “can hardly

be characterized as egregious * * *. Robeson did not engage

in repeated efforts to wear down [defendant’s] resistance.

* * * [O]ther than the initial background questions he asked,

Robeson asked defendant only one question[.]” 357 Or at ___

(internal quotation marks omitted). Of course, there was no

406 State v. Delong

reason for Robeson to ask defendant repeated or additional

questions. Under compelling circumstances, defendant pro-

vided incriminating information to the deputies based on a

single question. From Robeson’s question and the circum-

stances, it is apparent that the purpose of the question was

to elicit potentially incriminating information from defen-

dant. Here, that purpose was achieved by Robeson asking a

single question.

Second, the majority considers “the character of

defendant’s consent.” 357 Or at ___. Again, without any ref-

erence to the compelling circumstances confronting defen-

dant, the majority concludes that, in response to an accusa-

tion by a sheriff’s deputy who had searched and handcuffed

him, defendant simply “invited the deputies to search his

car if they wanted to do so. Defendant’s invitation to search

his car in this case is virtually identical to the invitations

in Kennedy and Rodriguez, which this court held attenu-

ated the taint of the unlawful seizures in those cases.” 357

Or at ___ (citing State v. Kennedy, 290 Or 493, 624 P2d

99 (1981), and State v. Rodriguez, 317 Or 27, 854 P2d 399

(1993)). However, as with its reliance on Unger, the majority

fails to recognize critical differences between Kennedy and

Rodriguez and this case. In Kennedy, the defendant was not

confronting compelling circumstances when he consented to

a search of his luggage after police officers had stopped him

at an airport without reasonable suspicion. The defendant

was not in custody or improperly questioned as part of any

Miranda violation. In Rodriguez, the defendant consented

to a search of his apartment after he “had been read his

Miranda rights and stated that he understood them. He was

under no compulsion to answer the agent’s question.” 317

Or at 41 n 15. Both cases involved alleged violations of the

defendants’ privacy rights under Article I, section 9—not a

defendant’s right to remain silent protected by Article I, sec-

tion 12.

Finally, the majority purports to consider “the

causal connection between the violation and defendant’s

invitation.” 357 Or at ___. As previously noted, defendant’s

response to Robeson’s question immediately followed that

question. The conversation was brief, with no intervening

Cite as 357 Or 365 (2015) 407

circumstances occurring between the question and the

response. Notwithstanding the direct and obvious causal

connection between the question and the consent, the major-

ity observes that “[t]his is not a case in which Robeson’s

unwarned questioning left ‘little, if anything, of incrimi-

nating potential * * * unsaid.’ ” 357 Or at ___ (quoting State

v. Jarnagin, 351 Or 703, 722, 277 P3d 535 (2012) (internal

quotation marks omitted)). However, the quoted portion of

Jarnagin pertains to the efficacy of belated Miranda warn-

ings. The quoted discussion from Jarnagin appears to have

little bearing on the causal connection between the Miranda

violation and defendant’s consent to search in this case.4

In short, I do not find the majority’s attenuation

analysis in this case persuasive. As noted, pertinent case

law does not support the majority’s conclusion that defen-

dant’s consent was volunteered. Moreover, the majority does

not recognize that the compelling circumstances to which

defendant was subjected bears on whether defendant’s con-

sent attenuates the police illegality in this case. Although

the majority purports to consider the causal connection

between the illegality and defendant’s consent, it declines to

actually look at those compelling circumstances as a causal

factor. In my view, that oversight represents a major flaw in

the majority’s attenuation analysis. The majority then com-

pounds that error by giving inordinate weight to defendant’s

consent as a factor that—by itself, and in a highly fictional-

ized manner5 —attenuates the taint of the police illegality.

4

The complete quote in Jarnagin is as follows:

“With that background in mind, we turn to the facts of this case. We note,

as an initial matter, that this is not a case, as in [Missouri v. Seibert, 542 US

600, 124 S Ct 2601, 159 L Ed 2d 643 (2004)], where the unwarned interroga-

tion left ‘little, if anything, of incriminating potential * * * unsaid,’ making it

‘unnatural’ not to ‘repeat at the second stage [of the interrogation] what had

been said before.’ See Seibert, 542 US at 616-17 (plurality opinion).”

351 Or at 722.

5

I understand that legal fictions are commonly used in the analysis of legal

principles and in their application to particular facts. See Louise Harmon, Falling

Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 Yale

LJ 1, 2-16 (1990) (discussing historical debate on use of legal fictions). Professor

Lon Fuller defined a legal fiction as “either (1) a statement propounded with a

complete or partial consciousness of its falsity, or (2) a false statement recognized

as having utility.” Lon L. Fuller, Legal Fictions 9 (1967). Fuller distinguished a

fiction from a lie “by the fact that it is not intended to deceive.” Id. at 6. He distin-

guished a fiction from an erroneous conclusion “by the fact that it is adopted by

408 State v. Delong

III.

As noted in Vondehn, 348 Or at 476 n 8, other state

courts have decided under their state constitutions that

physical evidence obtained in violation of Miranda rights

must be excluded at trial as “fruit of the poisonous tree.”

See, e.g., State v. Peterson, 181 Vt 436, 446-47, 923 A2d 585

(2007) (holding, under Vermont Constitution, that “[p]hysi-

cal evidence gained from statements obtained under circum-

stances that violate Miranda is inadmissible in criminal

proceedings as fruit of the poisonous tree”); Commonwealth

v. Martin, 444 Mass 213, 215, 827 NE2d 198 (2005) (adopt-

ing common-law rule under Massachusetts Constitution

that physical evidence, “if derived from unwarned state-

ments where Miranda warnings would have been required

by Federal law in order for them to be admissible, is pre-

sumptively excludable from evidence at trial as ‘fruit’ of the

improper failure to provide such warnings”); State v. Knapp,

285 Wis 2d 86, 123, 700 NW2d 899 (2005) (noting that “the

goals of the exclusionary rule and fruit of the poisonous

tree doctrines are to curb ‘illegal governmental activity,’ ”

and concluding that “it is appropriate that the exclusion-

ary rule bars physical fruits obtained from a deliberate

Miranda violation under Article I, Section 8” of Wisconsin

Constitution); but see State v. Sole, 185 Vt 504, 514, 974 A2d

587 (2009) (holding that physical evidence not tainted by

prior Miranda violation where the defendant consented to

search in response to officer’s request because “a consent

request is not designed to elicit an incriminating response”)

(internal quotation marks omitted)).

its author with knowledge of its falsity.” Id. at 7. Thus, for Fuller, a legal fiction

was problematic only if it was used without recognition of its falsity: “In practice,

it is precisely those false statements that are realized as being false that have

utility. A fiction taken seriously, e.g., ‘believed,’ becomes dangerous and loses its

utility. It ceases to be a fiction under either alternative of the definition given

above.” Id. at 9-10. Other commentators have agreed with Fuller that the danger-

ousness of a fiction derives from the failure to acknowledge its falsity and have

sometimes criticized the fiction of “consent” in criminal procedure on that basis.

See, e.g., David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of

the Fourth Amendment, 1997 Sup Ct Rev 271, 322 (1997) (“Unfortunately, the

fiction of consent in criminal procedure is used by the Supreme Court with some-

thing far short of ‘a complete consciousness of its falsity.’ ”) (Quoting Fuller.) In

my view, using a legal fiction without recognizing its falsity is particularly dan-

gerous when the scope of protection afforded a constitutional right is determined

based on the use of that fiction.

Cite as 357 Or 365 (2015) 409

The physical evidence that defendant has challenged

in this case is derivative in nature, because it was obtained

as the result of an unwarned question directed by Robeson

to defendant when defendant was in custody. Defendant

is therefore entitled to a determination as to whether that

derivative evidence is “tainted” by the constitutional viola-

tion or, as famously stated by Justice Frankfurter, whether

the evidence is the “fruit of the poisonous tree.” Nardone

v. United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed

307 (1939). As pointed out by Professor LaFave, Nardone

“established the doctrine of ‘attenuation’ by authoritatively

recognizing that the challenged evidence might sometimes

be admissible even if it did not have an ‘independent source’

because the ‘causal connection * * * may have become so

attenuated as to dissipate the taint.” LaFave, 3 Criminal

Procedure § 9.3(a) at 419-20; see also Wong Sun v. United

States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963) (sus-

pect’s confession to crime untainted by his illegal arrest the

day before, because it was given after his release and his

voluntary return to police station).

In this case, there was an immediate, direct causal

relationship between the compelling circumstances confront-

ing defendant and the consent to search that defendant gave

in response to Robeson’s unwarned question. As observed in

Vondehn, this court has long recognized the inherent level

of coercion that exists when suspects in custody are ques-

tioned by police officers. Vondehn, 348 Or at 472; see Joslin,

332 Or at 380 (noting that protection against compelled self-

incrimination under Article I, section 12, “extends to custo-

dial interrogations, because of the inherent level of coercion

that exists in such interrogations”); Meade, 327 Or at 339

(court “has recognized that a level of coercion is inherent in

any custodial setting”); State v. Brewton, 247 Or 241, 244,

422 P2d 581, cert den, 387 US 943 (1967) (recognizing “the

inherently coercive character of police interrogation of a sus-

pect in custody who has not been advised of his rights”).

Indeed, the United States Supreme Court identified the

compulsion inherent in custodial interrogations as the pri-

mary reason for requiring police officers to warn suspects

of their rights. See Miranda v. Arizona, 384 US 436, 467, 86

S Ct 1602, 16 L Ed 2d 694 (1966) (concluding that, without

410 State v. Delong

providing such warnings, “the process of in-custody inter-

rogation of persons suspected or accused of crime contains

inherently compelling pressures which work to undermine

the individual’s will to resist and to compel him to speak

where he would not otherwise do so freely”).

In recent years, several courts have recognized the

compelling effect of a police officer’s presence on an indi-

vidual’s consent and have considered empirical studies in

fashioning appropriate tests for determining the validity of

consent searches. For example, the Supreme Court of New

Jersey cited various psychological studies regarding the

compulsion inherent in police-citizen encounters in State v.

Carty, 170 NJ 632, 790 A2d 903 (2002). The court noted, “In

the context of motor vehicle stops, where the individual is

at the side of the road and confronted by a uniformed officer

seeking to search his or her vehicle, it is not a stretch of the

imagination to assume that the individual feels compelled

to consent.” Id. at 644 (citing psychological studies that have

shown that “there is an almost reflexive impulse to obey an

authority figure”). The court also cited data from the New

Jersey State Police Independent Monitors’ reports that indi-

cated that nearly 95 percent of detained motorists granted

a law enforcement officer’s request for consent to search. Id.

at 644-45. Based in part on that social science, the court

altered its test for determining the validity of a motorist’s

consent to search, holding that law enforcement personnel

must have a reasonable and articulable suspicion of crimi-

nal wrongdoing, beyond the initial valid motor vehicle stop,

before seeking consent to search. Id. at 647.

Similarly, in Brown v. State, 182 P3d 624 (Alaska

Ct App 2008), the Court of Appeals of Alaska relied on var-

ious studies on the inherently compelling nature of police-

citizen interactions to conclude that federal law does not

adequately protect motorists. The court noted that consent

searches are nearly always held to be valid under the Fourth

Amendment: “The federal law in this area is premised on

the assumption that, all things being equal, a motorist who

does not wish to be subjected to a search will refuse consent

when the officer seeks permission to conduct a search. But

experience has shown that this assumption is wrong.” Id.

Cite as 357 Or 365 (2015) 411

at 630. After citing various studies that have undercut the

notion that a person truly consents to be searched, the court

concluded:

“Whatever the exact reasons for motorists’ willingness

to accede to the requests of law enforcement officers, it is

clear that large numbers of motorists are consenting to be

searched each year—indeed, each month, and each week.

Motorists are giving consent in such large numbers that

it is no longer reasonable to believe that they are making

the kind of independent decision that lawyers and judges

typically have in mind when they use the phrase ‘consent

search.’ ”

Id. at 630-31. Ultimately, the court held, under the search-

and-seizure provision of the Alaska Constitution, that an

officer who had stopped the defendant for a vehicle-equip-

ment violation was prohibited from requesting the defen-

dant’s consent to search her person and vehicle for drugs.

Id. at 634.

Several other courts have acknowledged the wide-

spread academic criticism of case law pertaining to con-

sent searches. The Supreme Court of Kansas, for example,

observed, “Commentators, in addition to noting the difficulty

in applying the case law relating to consensual searches

to specific fact situations, argue that the [United States

Supreme] Court’s analysis utilizes an ill-crafted paradigm

[for interpreting and applying the Fourth Amendment].”

State v. Thompson, 284 Kan 763, 777-79, 166 P3d 1015 (2007),

as modified, (Oct 17, 2007) (noting numerous scholars’ cri-

tiques that consent searches after routine traffic stops are

inherently coercive). Similarly, the Supreme Court of Iowa

described the abundant academic commentary on consent

searches pursuant to traffic stops and acknowledged that

a common criticism with the consensual search doctrine is

that “a traffic stop gives rise to an element of compulsion.”

State v. Pals, 805 NW2d 767, 780-82 (Iowa 2011).

In particular, scholars have criticized the wide gap

between the fiction that ordinary citizens consent to a police

officer’s requests and the reality that police-citizen encoun-

ters involve such inherently compelling circumstances as to

vitiate any true choice on the part of the citizen. According

412 State v. Delong

to a study performed in Maryland and Ohio, which exam-

ined motorists’ compliance with police requests for consent

to search their vehicles, approximately 90 percent of the

motorists studied consented to have their vehicles searched.

Daniel J. Steinbock, The Wrong Line Between Freedom and

Restraint: The Unreality, Obscurity, and Incivility of the

Fourth Amendment Consensual Encounter Doctrine, 38 San

Diego L Rev 507, 534-35 (2001). Similar studies on police-

citizen encounters have shown that “people tend to underes-

timate the strength of situational constraints and overesti-

mate the voluntariness of others[’] actions.” Josephine Ross,

Can Social Science Defeat a Legal Fiction? Challenging

Unlawful Stops Under the Fourth Amendment, 18 Wash &

Lee J Civil Rts & Soc Just 315, 332 (2012) (advocating for

defeat of legal fiction of consensual nature of police-citizen

encounters through use of social science). Indeed, one com-

mentator has concluded, “The truth is that people consent

so often that it undermines both the meaningfulness of

the consent and the believability that the police are really

respecting the doctrine.” Oren Bar-Gill & Barry Friedman,

Taking Warrants Seriously, 106 Nw U L Rev 1609, 1662

(2012).

In State v. Jenkins, 298 Conn 209, 3 A3d 806 (2010)

(Palmer, J., dissenting), Justice Palmer recently surveyed

much of the academic commentary and social science regard-

ing the coercive effect that an officer’s request for consent is

likely to have on a motorist who has been detained in con-

nection with a traffic stop. Id. at 325-34. He summarized

that literature as follows:

“[E]mpirical studies over the last several decades on the

social psychology of compliance, conformity, social influ-

ence, and politeness have all converged on a single conclu-

sion: the extent to which people feel free to refuse to comply

is extremely limited under situationally induced pressures.

* * * It therefore has been argued that the United States

Supreme Court should incorporate the empirical find-

ings on compliance and social influence into * * * consent

[search] jurisprudence * * * to dispel the air of unreality

that characterizes the current doctrine.”

Id. at 326 (internal quotation marks omitted).

Cite as 357 Or 365 (2015) 413

The foregoing authorities have all recognized that

compulsion is an inherent feature of a police encounter when

a motorist is detained in connection with a routine traffic

stop. In this case, we have the additional circumstances that

defendant was personally searched, handcuffed, and placed

in the back of a patrol car; that strong show of authority

subjected defendant to more compulsion than is ordinarily

inherent in a routine traffic stop. Based on its prior prece-

dents, this court should give those compelling circumstances

appropriate weight in considering the causal connection

between Robeson’s Miranda violation and defendant’s con-

sent to the search of his car. Vondehn, 348 Or at 472; Joslin,

332 Or at 380; Meade, 327 Or at 339; Brewton, 247 Or at

244.

This court has generally looked to the totality of the

circumstances and applied a fact-intensive inquiry to deter-

mine whether physical or testimonial evidence derives from

or is a product of a Miranda violation. Jarnagin, 351 Or at

716-17; see Vondehn, 348 Or at 482 (considering “all relevant

circumstances” in deciding whether belated Miranda warn-

ings were effective in ensuring valid waiver of rights). Here,

Robeson illegally asked defendant an unwarned question in

violation of Article I, section 12, for the purpose of elicit-

ing incriminating information from defendant. Defendant’s

direct and immediate response to that question, given under

compelling circumstances, included defendant’s consent

to search his car. Those circumstances involved a strong

show of police authority, including personally searching

defendant, handcuffing him, and placing him in the back

of Robeson’s patrol car. There were no intervening events

between Robeson’s unwarned question and defendant’s con-

sent. Robeson exploited that unwarned question to obtain

incriminating information from defendant. And that infor-

mation, in turn, was offered by the state to convict defen-

dant of possession of a controlled substance. Under those

circumstances, defendant’s consent cannot properly be

viewed as a complete break in the causal chain between the

Miranda violation and the physical evidence obtained by the

police. Put differently, defendant’s consent was more than

tenuously related to the Miranda violation. Jarnagin, 351

Or at 716-17; see also State y. Ayles, 348 Or 622, 636-39,

414 State v. Delong

237 P3d 805 (2010) (Miranda warnings alone not sufficient

to “ensure that the unlawful police conduct did not affect,

or had only a tenuous connection to, [the] defendant’s

responses”); LaFave, 3 Criminal Procedure § 9.3(c) at 423-24

(discussing relevant criteria for determining “when there is

only an ‘attenuated connection’ between a violation and cer-

tain derivative evidence”); Comment, Fruit of the Poisonous

Tree—A Plea for Relevant Criteria, 115 U Pa L Rev 1136,

1148-49 (1967) (source of “relevant criteria” relied upon by

Professor LaFave).

For the foregoing reasons, I would hold that defen-

dant’s consent to the search of his car did not attenuate the

taint of the Miranda violation by Robeson. Where, as here,

a suspect consents to the search of his car under compelling

circumstances and in direct response to an unwarned ques-

tion by a law enforcement officer seeking to elicit incrimi-

nating information from that suspect, the physical evidence

obtained from that search must be excluded as the “fruit of

the poisonous tree” to give effect to the constitutional protec-

tion against self-incrimination provided for by Article I, sec-

tion 12, of the Oregon Constitution. In my view, the majority

‘s contrary conclusion unduly diminishes the vital constitu-

tional protection against self-incrimination provided for by

Article I, section 12. I therefore respectfully dissent.

Walters, J., joins this dissenting opinion.