STATE EX REL. JUV. DEPT. v. O'FARRELL

Decision Date28 January 2004
Citation191 Or. App. 627,83 P.3d 931
PartiesIn the Matter of Sean Christopher O'Farrell, a Minor Child. STATE ex rel. JUVENILE DEPARTMENT OF WASHINGTON COUNTY, Appellant, v. Sean Christopher O'FARRELL, Respondent.
CourtOregon Court of Appeals

Rolf C. Moan, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Susan D. Isaacs, Beaverton, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

SCHUMAN, J.

In this juvenile delinquency case, youth made inculpatory statements during an interview with police detectives while he was under investigation for conduct that, if committed by an adult, would amount to aggravated animal abuse, ORS 167.322(1)(a). At a subsequent hearing, the trial court granted youth's motion to suppress the statements because they resulted from the detectives' exploitation of unlawful questioning and because the detectives overbore youth's will. The state appeals. ORS 419A.208(1)(c). We review factual findings de novo and legal issues for errors of law. ORS 419A.200(6)(b); State ex rel Juv. Dept. v. Gallegos, 150 Or.App. 344, 347, 945 P.2d 656 (1997). We reverse.

The present case involves the alleged mutilation and killing of a cat. Some time before the interview during which the inculpatory statements regarding that event occurred, youth was charged with abuse of a dog in an unrelated case. He had been charged with that conduct and was represented by counsel on that charge. At the time of the interview at issue in this case, he was housed in a private facility1 awaiting disposition in the dog case. He had not been charged with any conduct involving the cat incident, and he had no legal representation regarding it. He was 17 years old.

The interview was conducted by Detectives Trapp and Stratford in an attic office at the private facility where youth was housed. The detectives were aware of the animal abuse charges pending against youth in the dog case. Both detectives wore plain clothes and their weapons were concealed. Trapp introduced herself, and both officers showed their badges to youth. Trapp then began to read him his Miranda rights from a form. After hearing the first right, youth was able to recite the remaining rights from memory. Trapp then reviewed the form with youth, and youth paraphrased his understanding of each right for the detectives in his own words. He then signed the advice-of-rights form.

Early in the interview, Trapp told youth that she knew that he had harmed the cat. Youth denied it. Suspecting that youth might be the victim of child abuse, she told him that "young people take things out on * * * other things or other people when they have been abused[.]" She said that she knew about the cat incident and the dog incident; she then asked whether youth had been the victim of abuse, whether he needed "some * * * help with his pain," and "if that abuse was the reason he took things out on animals?" Youth responded by talking about the incident with the dog, but he continued to deny that he had harmed the cat.

Trapp then told youth that she had conducted an investigation of the cat incident. She told him that fingerprints could be lifted from the scene and that a veterinarian was going to examine the evidence left there. She began, in her words, "probing for some specific reasons why [youth] might have hurt the cat," asking if youth was angry while he killed it, and wanting specific information about how he performed the act. During this part of the questioning, youth independently reintroduced the issue of fingerprints and appeared "confused." Trapp told him that "fingerprints are like DNA" and "would be unique only to him."

Trapp then asked whether youth was sorry about what he did. Youth said he was, but he stated that he didn't remember killing the cat. After more questioning, he ultimately told Trapp that he had stabbed the cat to death. Thereafter, Trapp showed him pictures of the cat and a picture of a wooded area behind the home where youth had been living at the time of the incident. Youth circled an area on the landscape picture and told the detectives that was where he had left the cat. Shortly thereafter, he was asked whether he wanted to make a tape-recorded admission. The response is unclear from the record, but it appears that in lieu of making a tape, Trapp wrote out youth's statements. Youth read them over and made some minor changes before signing them. Some 90 minutes had elapsed since the interview began.

After charges were filed in connection with the cat case, the youth moved to suppress all written and oral statements made to Trapp and Stratford. The trial court granted the motion as to all statements made after Trapp mentioned the dog case. In its opinion letter, the court found that, although youth had voluntarily waived his Miranda rights, the detectives exploited unlawful questioning about the dog case in order to obtain youth's statements about the cat case. The court also found that statements made by youth after mention of the dog case were involuntary because "mention of the dog case overrode [youth's] will to not discuss the cat case." The state's motion for reconsideration was denied, and this appeal ensued.

The state assigns error to the suppression of youth's admissions regarding the cat case. The parties agree that the trial court correctly ruled that, because youth was represented by counsel regarding the dog case at the time of the interview, in discussing that case the detectives violated youth's right to counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. State v. Sparklin, 296 Or. 85, 93, 672 P.2d 1182 (1983); McNeil v. Wisconsin, 501 U.S. 171, 179, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). They also agree that the detectives could lawfully question youth concerning the cat case because he had not been charged with that conduct and it was not inextricably intertwined with the dog case. Sparklin, 296 Or. at 95,672 P.2d 1182; State v. Hill, 142 Or.App. 189, 195-96, 921 P.2d 969 (1996),rev. den., 327 Or. 521, 971 P.2d 408 (1998); McNeil, 501 U.S. at 175,111 S.Ct. 2204; Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001).2 Finally, the parties agree that youth voluntarily waived his Miranda rights. The parties frame the issues before this court as (1) whether the detectives exploited the unlawful discussion of the dog case to obtain youth's admissions in the cat case, and (2) whether the statements made by youth after the detectives mentioned the dog case were voluntary. They agree that if exploitation of illegality occurred or if the statements were involuntary, they must be suppressed.

We begin with the exploitation question. The trial court agreed with youth that any statements resulting from exploitation of the detectives' conversation with youth insofar as it dealt with the dog case must be suppressed; those parts of the interview violated youth's right to counsel, and, under the "fruit of the poisonous tree" doctrine, all evidence that was "come at by exploitation of that illegality" is tainted. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (internal quotation marks omitted); accord State v. Rodriguez, 317 Or. 27, 40, 854 P.2d 399 (1993)

. The trial court found as fact that youth established that he "would not have made statements on the cat case without the police-initiated discussion of the dog case." Accordingly, the court suppressed all statements youth "made after the detectives mentioned the dog case." The state renews the arguments it made at the suppression hearing: that youth did not adduce evidence demonstrating a causal connection between the discussion of the dog case and youth's statements regarding the cat and, in any event, even if such a connection existed, the state demonstrated that other topics of discussion, in particular the discussion of circumstantial evidence linking youth with the crime, independently would have elicited the confession.

On de novo review, we agree with the state's first proposition, and it is dispositive: youth did not establish the necessary connection between the unlawful questioning about the dog and his statements about the cat. Exploitation occurs when police take advantage of their unlawful conduct, for example by using information that the conduct produced, e.g., State v. Schwartz, 173 Or.App. 301, 307-08, 21 P.3d 1128,

rev. den., 333 Or. 162, 39 P.3d 192 (2001), or by trading on information unlawfully obtained in order to leverage consent, waiver, or some concession from the accused, e.g., Rodriguez, 317 Or. at 40-41,

854 P.2d 399. Youth had the initial burden of establishing exploitation, that is, of showing a "`factual nexus' between the unlawful police conduct and the challenged evidence * * *. [I]f a defendant makes that initial showing, then the burden of proof shifts to the government to show that the unlawful conduct has not tainted the evidence[.]" State v. Johnson, 335 Or. 511, 520, 73 P.3d 282 (2003); State v. Cardell, 180 Or.App. 104, 117, 41 P.3d 1111 (2002). Although establishing a causal "but-for" connection between the unlawful conduct and the evidence is not sufficient to establish the requisite nexus, it is nonetheless necessary; "there will have to be, at the very least, a causal connection between the unlawful police conduct and the evidence uncovered during the subsequent consent search." Rodriguez, 317 Or. at 39,

854 P.2d 399. Further, the fact that the violation occurs before the statement does not imply that the violation caused the statement; a defendant must establish a more logical connection. The determination whether a defendant has met the burden of establishing a nexus is "one of...

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