# State v. Moore

> Oregon Supreme Court · December 12, 2013 · 354 Or. 493

URL: https://www.frixlaw.com/law-library/cases/6917089

## Case

- **Full name:** STATE OF OREGON, on Review v. JESSE JAMES MOORE, on Review
- **Court:** Oregon Supreme Court
- **Decided:** December 12, 2013
- **Citations:** 354 Or. 493; 318 P.3d 1133; 2013 Ore. LEXIS 997; 2013 WL 6508827
- **Precedential status:** Published
- **Opinion:** Concurrence by Kistler
- **Judges:** Balmer, Kistler, Walters
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

KISTLER, J.,
concurring in part and concurring in the judgment.
After an officer stopped defendant for driving under the influence of intoxicants (DUII), he asked defendant to consent to a blood draw and also advised him of the consequences of refusing to consent. As the majority notes, the officer told defendant that, if he refused to consent to a blood draw, his driving privileges would be suspended, he would not be eligible for a hardship permit for up to a year, he would be subject to a fine, and “evidence of the refusal * * * may be offered against [him].” Having consented, defendant now seeks to suppress the results of the blood draw on the ground that the consequences the officer told him rendered his consent involuntary. As defendant notes, the legislature imposed those consequences to give drivers an incentive to consent, see State v. Machuca, 347 Or 644, 658-59 , 227 P3d 729 (2010), and one might have thought that the question on review would be whether the consequences the officer identified were so onerous that, in light of the available alternatives, defendant had no real choice.
Defendant, however, has focused on a different proposition. In arguing that the officer’s advice rendered his consent involuntary, defendant reasons that the consequences that the officer identified were unconstitutionally coercive because one of those consequences was not legally permissible. He contends that, contrary to what the officer told him, evidence of his refusal to consent to a blood draw could not constitutionally be introduced in a criminal proceeding to prove that he was guilty of DUII.
In responding to that issue, the majority explains that the officer did not advise defendant that his refusal would be admissible in a criminal proceeding to prove that he was guilty of DUII. Rather, the officer advised defendant, somewhat more innocuously, “[i]f you refuse or fail a test, evidence of the refusal or failure may be offered against you.” The majority reasons that that advice was accurate. At a minimum, defendant’s refusal could be introduced in a civil proceeding to suspend his license for refusing to consent. I do not disagree with the majority’s answer to the issue on which defendant has focused his argument, and I also agree *508 with the majority that the holding in Missouri v. McNeely, 569 US_, 133 S Ct 1552 , 185 L Ed 2d 696 (2013) (dissipation of blood alcohol does not establish a per se exigency), is quite narrow.
I part company from the majority in one respect. In offering an alternative explanation of why the plurality opinion in State v. Newton, 291 Or 788 , 636 P2d 393 (1981), is not controlling, the majority notes that the plurality’s reasoning in Newton is inconsistent with a proposition stated in an earlier case, State v. Hirsch, 267 Or 613 , 518 P2d 649 (1974). See 354 Or at 501-02. The majority summarizes that proposition as follows: “[A] police officer’s accurate statement of the potential lawful adverse consequences resulting from a refusal ordinarily cannot be deemed to unlawfully coerce a defendant’s consent to a search or seizure.” Id. In my view, the precedential value of the proposition that the majority takes from Hirsch is subject to debate. That proposition finds its source in a 1971 dissent and, three years later, makes a fleeting and somewhat ambiguous appearance in the majority opinion in Hirsch} Beyond that, the proposition the majority draws from Hirsch 1 either proves too much or nothing at all.
The proposition stated in Hirsch arose initially in the context of a debate over the coercive effect of an officer’s statement that, if the defendant did not consent to a search, the officer either would get or would try to get a warrant. See State v. Douglas, 260 Or 60, 63 , 488 P2d 1366 (1971). After canvassing the differing legal views on that question, the majority opinion in Douglas concluded that it need not decide whether either formulation of the officer’s statement unconstitutionally coerced the defendant’s decision to consent; it held that the defendant’s decision was prompted by what his brother-in-law had told him, not by anything that the officer may have said about getting or trying to get a warrant. Id. at 78-79 .
The dissent took a different approach. It would have held that, even if the officer had told the defendant that he *509 would get a warrant, that statement was not unconstitutionally coercive. The dissent reasoned:
“[N]ot all coercion inducing consent to a search is constitutionally impermissible. If the officers threaten only to do what the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.”
Id. at 81 (O’Connell, C. J., dissenting). One other judge joined that dissent. See id. at 80 (Holman, J., concurring) (agreeing in part with the dissenting opinion). Whatever its merits, that part of the dissent drew only two votes.
Three years later, the statement from the dissenting opinion in Douglas appeared in the majority opinion in Hirsch. See 267 Or at 622 . The majority explained in Hirsch that one of the questions in that case was whether the defendant voluntarily consented to an inventory search of his van after an officer told him ‘“that they would get a search warrant if necessary.’” Id. at 621 (quoting the defendant’s version of the conversation). In setting out the applicable legal principles, the court stated:
“For the effect on an otherwise voluntary consent preceded by a statement that the officers would ‘get a warrant,’ see State v. Douglas, 260 Or 60 , 488 P2d 1366 (1971), for a complete discussion of conflicting rules.”
Id. at 622. The court then quoted part of the majority decision in Douglas , noted that the officers in Hirsch had “good cause and sufficient grounds for securing a warrant,” and then quoted part of the dissenting opinion in Douglas , which is quoted above. Id.
Having set out those legal principles, the court concluded:
“Under the facts and circumstances of this case, we hold that there was sufficient evidence to support the trial court’s denial of the motion to suppress and that the consent given by the defendant was voluntary, uninfluenced by the conduct of the police officers. The trial court, in denying the motion to suppress, was entitled to believe the officers— that the defendant consented to the inventory of the van’s contents. The defendant was given Miranda pre-interrogation warnings on three occasions before the consent was *510 obtained. Assuming that there is a conflict in the testimony between the defendant and the officers on the question of voluntary consent, we will not disturb the trial court’s ruling because the issue is one of fact.”
Id. 2
The principle on which Hirsch rests is far from clear. The majority may have relied on the statement from the dissenting opinion in Douglas , which it quoted. See id. The majority may have relied on a statement from the majority opinion in Douglas , which it also quoted. See id. The majority may have relied on one of the authorities discussed in Douglas , to which it referred the reader. See id. Or the majority may have resolved the case on the basis of some unidentified and unexplained factual finding that was bound up in the trial court’s ruling denying the defendant’s motion to suppress, as the majority’s reasoning suggests. See id. It is true that Hirsch quotes part of the dissenting opinion in Douglas . However, the role that that quotation played in the holding in Hirsch is sufficiently uncertain that, in my view, the proposition remains open for consideration. 3
Considered on its own merits, the proposition from Hirsch seems problematic. It is difficult to say that no lawful sanction imposed for refusing to consent can ever be unconstitutionally coercive. Suppose that the legislature provided that, if an officer had probable cause to believe a suspect was driving under the influence and if the suspect refused to consent to a blood draw, the suspect would lose his driving privileges permanently or the suspect’s vehicle would be forfeited or both those sanctions would be imposed. Those consequences would be lawful in the sense that the legislature imposed them for refusing to consent; yet, it is difficult to argue that the severity of those consequences would *511 not unconstitutionally coerce a suspect’s decision whether to consent to a blood draw. By the same token, it is equally difficult to say that every unlawful sanction will always exert an unconstitutionally coercive effect on a suspect’s decision to consent. The consequences of some unlawful sanctions may be so minor that they would have no appreciable effect on a reasonable person’s decision.
To avoid confusion, I do not mean to suggest that reminding a suspect of the adverse consequences that will flow from whatever decision he or she makes will automatically render the resulting choice involuntary. Rather, my point is that, when an officer has advised a suspect of the consequences of refusing to consent, the voluntariness inquiry should focus on, among other things, the effect those consequences would have on a reasonable suspect’s decision, the alternatives available to the suspect, 4 and the extent to which the consequences are the result of an earlier voluntary choice that the suspect made. 5 Asking only whether those consequences are lawful or unlawful may obscure the correct analysis.
I recognize that the majority qualifies the proposition that it draws from Douglas and Hirsch by adding the word “ordinarily.” However, that word leaves much unanswered. Even if one assumes that knowledge of lawful sanctions ordinarily will not unconstitutionally coerce a *512 person’s decision, when will the ordinary answer not suffice? In my view, the factors noted above, among others, bear on that issue, and we should be asking a different question (or perhaps additional questions) from the single question that the dissent noted in Douglas and that the majority repeated in Hirsch . For that reason, I do not concur in all the majority’s reasoning.
For me, the difficulty with this case is that defendant, perhaps influenced by our decision in Hirsch , has not asked the right question. Had he done so, we would have the benefit of the parties’ considered arguments on that issue. It does not, however, seem appropriate to resolve the case on an issue that the parties have not briefed, and, as noted above, I do not disagree with the majority’s answer to the issue on which defendant has focused. Accordingly, I concur in the majority’s opinion in part and also in the judgment.
Walters, J., joins in this concurring opinion.
Fourteen years after Hirsch , a modified form of the proposition resurfaced in a concurring opinion reflecting the views of only one justice. See State v. Williamson, 307 Or 621, 626-27 , 772 P2d 404 (1989) (Carson, J, concurring).
The quotation from Hirsch sets out the majority’s reasoning in its entirety.
Even if the majority in Hirsch intended to endorse the statement from the dissent in Douglas , a proposition that seems uncertain to me, the question that remains is whether the statement from the dissent in Douglas is limited to the context in which it was announced — an officer’s statement that he will get a warrant when the officer has probable cause to do so is not unconstitutionally coercive. Cf. State v. Williamson, 307 Or 621, 627 , 772 P2d 404 (1989) (Carson, J., concurring) (recasting the statement quoted in Hirsch and explaining that, when an officer says that he or she “will seek a search warrant,” that statement is not coercive).
Compare State v. Graf, 316 Or 544 , 853 P2d 277 (1993) (in light of the options available to a state employee, holding a pretermination hearing before deciding whether to discharge the employee for conduct that also constituted a crime did not unconstitutionally coerce the employee into giving up his right against self-incrimination to avoid losing his job), with Garrity v. New Jersey, 385 US 493 , 87 S Ct 616 , 17 L Ed 2d 562 (1967) (ordering a state police officer to surrender his right against self-incrimination or face the loss of his job unconstitutionally coerced his waiver of the right).
Assume, for example, that an inmate chooses to accept parole knowing that one of the conditions of parole is that he must consent to a search of his home if the parole officer reasonably suspects that it contains controlled substances and that the consequence of reffising consent is that parole will be revoked and the parolee will have to serve the remainder of his sentence. On the one hand, the prospect of incarceration if a person refuses consent ordinarily would render most decisions to consent involuntary. On the other hand, when that consequence flows from an earlier voluntary choice made to secure the benefits of parole, a parolee who consents to a search to avoid returning to prison can hardly claim that his consent was involuntarily coerced, even when the officer reminds the parolee of that consequence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6917089. Public record. Not legal advice.