State v. Banks

Decision Date07 February 2019
Docket NumberCC 140130317 (SC S065180)
Citation434 P.3d 361,364 Or. 332
Parties STATE of Oregon, Respondent on Review, v. Rodney BANKS, Sr., Petitioner on Review.
CourtOregon Supreme Court

364 Or. 332
434 P.3d 361

STATE of Oregon, Respondent on Review,
v.
Rodney BANKS, Sr., Petitioner on Review.

CC 140130317 (SC S065180)

Supreme Court of Oregon.

Argued and submitted May 4, 2018.
February 7, 2019


Ben Eder, Thuemmel Uhle & Eder, Portland, argued the cause and filed the brief for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore.**

WALTERS, C. J.

364 Or. 334

Defendant was arrested for driving under the influence of intoxicants (DUII) and, when asked, refused to take a breath test, which would have revealed the percentage of alcohol in his blood. For the reasons that follow, we conclude that Article I, section 9, of the Oregon Constitution prohibited the state from using defendant's refusal as evidence when it prosecuted him for that crime. We reverse the contrary decision of the Court of Appeals, State v. Banks , 286 Or. App. 718, 401 P.3d 1234 (2017), and the judgment of the circuit court.

I. BACKGROUND

The facts in this case are undisputed.1 Defendant drove his vehicle into a fence one night in Portland. Paramedics and law enforcement responded to the scene, evaluated defendant, and determined that he was he was intoxicated. Defendant was arrested and transported to the police station, where Officer Ladd was waiting. Ladd informed defendant that he had been in a crash and was at the police station because he "smelled of an alcoholic beverage pretty strongly." Ladd explained that he was "going to read [defendant] some information" and that he would "like [defendant] to open [his] mouth." When Ladd asked defendant, "Can I look in your mouth," defendant responded, "No." Ladd then explained that, "if you don't [open it], then I can't help you maybe take a breath test." After defendant responded that he would not open his mouth, Ladd read defendant the "rights and consequences" required by law. Ladd explained that defendant was "about to be asked to submit to a breath test *** under the implied consent law," and he provided information on the consequences for refusing or failing the test, including that his refusal to submit to the breath test "may be

434 P.3d 364

offered against [him]." After reading

364 Or. 335

the form, Ladd asked defendant, "[W]ill you take a breath test?" Defendant responded that he would not. Ladd did not obtain defendant's blood alcohol content (BAC). Defendant was charged with DUII, reckless driving, and criminal mischief.

Before trial, defendant moved to suppress evidence of his refusal to consent to the breath test. His position was that use of his refusal as substantive evidence of his guilt, as permitted under ORS 813.310, is unconstitutional. Defendant argued that use of his refusal would violate his right against self-incrimination under Article I, section 12, and his right against unreasonable searches and seizures under Article I, section 9. With respect to the latter, defendant argued that the use of his refusal as evidence as of his guilt placed too great a burden on his exercise of his Article I, section 9, right. The trial court denied the motion, the state presented evidence of defendant's refusal to support the inference that defendant knew he was intoxicated, and defendant was convicted of DUII.

Defendant appealed his judgment of conviction, and the Court of Appeals affirmed. Banks , 286 Or. App. at 719, 401 P.3d 1234. On the Article I, section 9, issue, the only issue that we address,2 the Court of Appeals explained that Ladd had a lawful right to conduct a warrantless seizure and search3 based on a warrant exception—the existence of probable cause and exigent circumstances. Id. at 727, 401 P.3d 1234. As a result, the court reasoned, defendant had no right to refuse to consent to that search, and his right against unreasonable searches and seizures was not violated by the use of his refusal as evidence at trial. Id.

364 Or. 336

Defendant sought review in this court, which we allowed. In this court, defendant does not argue that Ladd did not have probable cause or that exigent circumstances did not exist to permit a warrantless search of his breath. Instead, he argues, as he did in the proceedings below, that his refusal to take a breath test was an invocation of his right under Article I, section 9, of the Oregon Constitution to refuse to give his consent to a warrantless search. That exercise of a constitutional right, he submits, cannot be used as substantive evidence of his guilt and may not be commented on at trial without violating that constitutional provision.

The state does not take issue with that latter proposition. The state acknowledges that, "as a general rule, a person's choice to refuse to consent to a warrantless search and seizure is not admissible as substantive evidence against him." See, e.g. , State v. Smallwood , 277 Or. 503, 505-06, 561 P.2d 600 (1977) (noting that it is "usually reversible error to admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury"); State v. Moller , 217 Or. App. 49, 51, 174 P.3d 1063 (2007) (error to admit evidence of the defendant's refusal to consent to a search of his car); United States v. Moreno , 233 F.3d 937, 941 (7th Cir. 2000) (noting cases indicating that government cannot use refusal to consent to a search of home as evidence that person knew search would produce incriminating evidence); United States v. Thame , 846 F.2d 200, 207 (3rd Cir.), cert. den. , 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988) (error for prosecutor to argue that defendant's refusal to provide consent to search constituted evidence of his guilt); State v. Larson , 788 N.W.2d 25, 32-33 (Minn. 2010) (error to allow the introduction of defendant's refusal to consent to DNA testing as evidence of guilt); State v. Jennings , 333 N.C. 579, 604-05, 430 S.E.2d 188, 201 (1993) (error to allow officers to testify that defendant

434 P.3d 365

refused to allow search of hotel room and car); Padgett v. State , 590 P.2d 432, 434 (Alaska 1979) (error to admit evidence of the defendant's refusal to consent to search of car); Curry v. State , 217 Ga. App. 623, 625-26, 458 S.E.2d 385, 386-87 (1995) (evidence of defendant's refusal to consent to surgery erroneously admitted).

364 Or. 337

The state's response, instead, is that that general rule is not implicated here for three reasons. First, the state contends, under the implied-consent statutes, defendant agreed, by driving on a public highway, to submit to a breath test if arrested for DUII and, therefore, did not have a constitutional right at the time of arrest to refuse to provide the consent that Ladd requested. Second, the state argues, defendant's refusal was not an invocation of a constitutional right. When Ladd asked defendant to take to a breath test, he was not asking defendant to waive his Article I, section 9, right; rather, he was seeking defendant's physical cooperation and submission to a breath test that Ladd had lawful authority to conduct. Third, the state asserts, even if defendant's refusal was an invocation of a constitutional right, it can be used against him because Ladd had another lawful basis for obtaining a breath sample from defendant without a warrant and without his consent—probable cause and exigent circumstances. We address each of those arguments in succession.

II. ANALYSIS

A. Defendant had a legal right to refuse to provide consent at the time of arrest.

Article I, section 9, of the Oregon Constitution prohibits unreasonable searches and seizures of "persons" and their "houses, papers, and effects." A search of one's breath is protected under that provision. State v. Newton , 291 Or. 788, 800, 636 P.2d 393 (1981), overruled on other grounds by State v. Spencer , 305 Or. 59, 750 P.2d 147 (1988). Generally, Article I, section 9, requires that law enforcement obtain a warrant before performing a search. See Art I, § 9 ("[N]o warrant shall issue but upon probable cause."); State v. Bridewell , 306 Or. 231, 235, 759 P.2d 1054 (1988) (noting that law enforcement must have a warrant to search unless warrant exception applies). However, in interpreting that constitutional provision, this court has recognized various exceptions to the warrant requirement. See, e.g. , State v. Davis , 295 Or. 227, 237-38, 666 P.2d 802 (1983) (noting some exceptions). One such exception is voluntary consent to search. State v. Paulson , 313 Or. 346, 351-52, 833 P.2d 1278 (1992). That exception is established when the state proves

364 Or. 338

that "someone having the authority to do so voluntarily gave the police consent to search the defendant's person or property,"...

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