State v. Avila-Nava

Decision Date26 December 2014
Docket NumberSC S061802.,CA A146527,CC C092845CR
Citation356 Or. 600,341 P.3d 714
PartiesSTATE of Oregon, Petitioner on Review, v. CELSO AVILA–NAVA, Respondent on Review.
CourtOregon Supreme Court

Peenesh Shah, Assistant Attorney General, Department of Justice, Salem, argued the case and filed the brief for the petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Jed Peterson, O'Connor Weber, LLP, Portland, argued the case and filed the brief for the petitioner on review.



Under Article I, section 12, of the Oregon Constitution, police must cease custodial interrogation when a criminal suspect unequivocally invokes his or her right against self-incrimination. State v. McAnulty, 356 Or. 432, 455, 338 P.3d 653 (2014) ; State v. Davis, 350 Or. 440, 459, 256 P.3d 1075 (2011). This case raises the broader question of what standard applies to determine whether an unequivocal invocation of the right against self-incrimination was made and the particular question of whether, in the context in which they were communicated, defendant's words, “I won't answer any questions,” constituted an unequivocal invocation of that right. The trial court found, in light of contextual indicia on which it relied, that defendant's words did not amount to an unequivocal invocation and denied his motion to suppress. The Court of Appeals reversed that ruling and remanded to the trial court. State v. Avila–Nava, 257 Or.App. 364, 306 P.3d 752 (2013). Having allowed review, we affirm the Court of Appeals decision and remand this case to the trial court for further proceedings.


The pertinent facts are undisputed. Hillsboro police officers, who were investigating a robbery for which defendant was a wanted suspect, stopped a vehicle that defendant was driving. Defendant was arrested, handcuffed, and taken into police custody. At the scene of arrest, an officer read the Miranda warnings to him from a prepared card that had the warnings, in Spanish, printed on it.1 The officer read the warnings in Spanish because defendant had indicated that he did not speak English. After the officer read the warnings, defendant stated that he understood his rights. Officers then transported defendant to the Hillsboro Police Department.

At the police station, Detectives Ganete and Hahn interviewed defendant. Ganete spoke Spanish throughout his interaction with defendant. Ganete testified that he had no trouble understanding defendant and that defendant did not appear to have difficulty understanding his questions. Ganete testified that he read the Miranda warnings to defendant, from a prepared card that stated (translated from Spanish):

“It is my [duty] to inform you before you make a declaration that you have the right to remain silent.
“Anything you say may be used against you in a court of law or a judicial tribunal.
“You have the right to speak to an attorney and to be [sic]2 present during the interrogation.
“If you do not have the funds to contract an attorney, the court will assign one to you without cost.”

Ganete then asked defendant whether he understood those rights. Defendant replied: “I have a question. Do I have to answer your questions?” Ganete responded that defendant “did not have to answer any questions or talk to me if he chose to.” Defendant then asked Ganete “why did mister call the police?” In response, Ganete told defendant that we needed to get past first his understanding of the Miranda warning before we can actually begin to speak with each other.” Ganete then stated that defendant had to decide whether to talk to him or not, and Ganete read the Miranda warning card again. Ganete “took each right line by line and asked if [defendant] understood each right, and he understood the rights with the exception of * * * where he questioned anything you say may be used against you in a court of law.” After Ganete read that warning, defendant said “I don't understand what this means.” Ganete asked “what is it you don't understand,” and defendant replied, “anything I say can be used against me.” Ganete said, “that's correct. Anything you say can be used against you.” At that point, defendant stated: “I won't answer any questions.”

Ganete then asked if defendant meant that he did not want to talk to Ganete and that he wanted him to leave. Defendant responded, “No, I can't talk to you if I don't understand what this right means because you're telling me I have the right to remain silent. I don't understand what this right means.” At that point, Ganete again read the warning that “anything you say may be used against you.” As he was doing so, defendant interrupted him and said, “pardon. I'm not trying to be disrespectful. How can I say this?” Defendant paused before saying, [a]nything I say can be used against me. It's like I'm lying?” Ganete characterized that question as “more like [defendant] was doubtful of understanding what it meant and interpreting it as ‘well, it's like I'm lying then.’ Ganete proceeded to reiterate the warnings, because we were kind of hung up in this—on this right * * * because we were at this point where we weren't making any progress of understanding; so I thought that, ‘Okay. We'll come back to that right afterwards and see if he would understand then.’

After repeating the Miranda warnings, Ganete asked defendant if he understood them, with the exception of the warning that anything that he said could be used against him. Defendant replied: “That's exactly what I don't understand.” Ganete

“then asked [defendant] if—how many—how many years of schooling did he have, and he mentioned he had up to sixth grade. I asked if he knew how to read Spanish, and he said, ‘yes, a little bit.’ And then I suggested, I says, ‘If I show you the Miranda rights card, are you able to read and understand?’ And he said, ‘yes, I can.’

Ganete then gave the Miranda card to defendant, who read the warnings out loud. After defendant finished reading the card, Ganete said:

‘It's my duty to inform you before you make a declaration,’ you have the right to remain silent.' [Defendant] pauses and asks us a question, ‘You can—you can just ask me questions then?’, and I replied, ‘If I tell—if you tell me that you wish to remain silent, I can't question you.” [Defendant] then said, ‘Now, I understand’.
“I then explained to [defendant] we needed to establish if he wants to speak with me or not, which is a lot different than if he agrees to speak with me.
“However, during my questioning, he may choose to answer or not answer specific questions, and that was fine with me.
“Finally, I asked [defendant] ‘Do you understand your rights?’ And he said ‘Yes,’ and then I asked, ‘Do you understand the Miranda warning card you read?’ He, [defendant] said, ‘Yes,’ and I asked ‘Do you want to speak with me freely?’ [Defendant] said, ‘Yes.’

Before Ganete concluded his testimony, the trial court engaged him in the following colloquy:

[The Court]: I'm a little confused. He said at one point that I won't answer any questions, and then it seems pretty unequivocal. Why did you continue?
[Ganete]: Because I asked at one point ‘are you saying you don't want to talk to me at all? You just want me to go away?’ And his expression was, ‘no I can't talk to you if I don't understand what this right means because you're telling me I have the right to remain silent. I don't understand what this means.’
“So, your honor, I guess to clarify this, I—my understanding is that he wasn't understanding that right, and I made every effort to explain to him what that meant and this was our going back and forth until he finally said, ‘Oh, I see what you're telling me. Okay. Under that condition, then I want to talk to you. I understand what that right means.’
[The Court]: So when he said to you, ‘I won't answer any questions,’ that was phrased to you as a not a statement of—did you receive that as a statement where he was unequivocally exercising his rights not to talk to you, or was that a question he was pondering to you?
[Ganete]: I interpreted it as a question that he was pondering to me from lack of understanding. I didn't accept that as unequivocally, he's saying, ‘I don't want to talk to you.’

Defendant's counsel argued at the suppression hearing that, when defendant said “I won't answer any questions,” Ganete was required to terminate the interrogation, because those words have the same effect as “I choose to remain silent” and “I won't talk to you.” The prosecutor responded that defendant had not unequivocally invoked his right against self-incrimination and that Ganete's continued questioning was meant to ensure that defendant understood his rights. Because defendant indicated that he understood those rights before he made incriminating statements, the prosecutor reasoned, defendant had validly waived his right against self-incrimination.

The trial court denied defendant's motion to suppress. The court explained:

[T]he court's responsibility is to look at the totality of the facts surrounding the Miranda issue, and when you first—so there was this discussion that was going on between Officer Ganete and the defendant, and they started getting hung up on this one right that anything you say can be used against you in a court and wasn't sure what that was all about. And then the defendant says, ‘I won't answer any questions,’ and, you know, when you first hear that, you think that it's a unequivocal exercise of his Miranda rights, and it should be shut down at that point.
“But Officer Ganete took great effort to try to explain to the court that it—it wasn't that he was exercising his rights. He wasn't saying ‘I won't answer any questions.’ It was that he didn't know if he wasn't supposed to answer any questions or not, and so there's this—he was—it was apparent that the defendant was confused about what his rights were, and that's later cleared up before defend

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