SHORR, J.
An employee at a hotel in Cannon Beach was robbed at gunpoint. Defendant was taken into police custody in Portland and, after he invoked his right to counsel, detectives informed him in detail of the evidence they had discovered that implicated him in the Cannon Beach robbery. Soon after, while still in police custody, defendant confessed to the robbery despite detectives repeatedly reminding defendant that he had invoked his right to counsel. Defendant, who was charged with crimes related to the robbery, moved before trial to suppress the incriminating statements that he had made after invoking his counsel right. The trial court denied the motion, and defendant was convicted of first-degree robbery, ORS 164.415, second-degree kidnapping, ORS 163.225, and possession of a firearm as a felon, ORS 166.270, and he appeals from the judgment of conviction.
The main questions presented on appeal are whether the detectives violated defendant's right to counsel under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution, and, if so, whether defendant's subsequent waiver of that right was valid—that is, given the circumstances, the waiver was knowing, intelligent, and voluntary—in light of the earlier violation. For the reasons explained below, we conclude that the detectives violated defendant's right to counsel when they set out the evidence against him and that the subsequent waiver was not valid. The trial court therefore erred in denying defendant's motion to suppress.1 We reverse and remand.2
We review a denial of a motion to suppress for legal error, accepting the trial court's findings of fact that are supported by constitutionally sufficient evidence in the record. State v. Doyle , 262 Or. App. 456, 458-59, 324 P.3d 598, rev. den. , 355 Or. 880, 333 P.3d 334 (2014). In this case, the court made factual findings in a letter opinion explaining its decision to deny defendant's motion to suppress. The following excerpt is taken from that letter opinion. We discuss additional facts from the record throughout our analysis as needed.
"On January 5, 2014, a man stole cash at gunpoint from the Stephanie Inn in Cannon Beach, Oregon. Lt. Christopher Wilbur investigated the robbery. Portland Police Detective Brett Hawkinson was investigating robberies similar to the Cannon Beach crime. Eventually police determined that defendant Ernest Lee Dean committed the robberies. Defendant was arrested the morning of February 21, 2014 and taken to the thirteenth floor of the Portland Justice Center. Police obtained search warrants from Multnomah County Circuit Court, and they executed the warrants on the day of defendant's arrest.
"One of the search warrants was for defendant's Portland storage unit. Detectives searched the unit for identification, jewelry, cell phones, keys, guns, clothing, strings, wires, electrical tape, and zip ties. They opened bags and boxes while searching for these items.
"At 4:36 p.m. on February 21, 2014, after the warrants were executed, Lt. Wilbur and Detective Hawkinson began an interview with defendant in an interview room equipped with audio and video recorders. Detective Hawkinson read defendant his Miranda rights, and defendant signed a form indicating he understood his rights. Defendant was not under the influence of alcohol or drugs, and he was not suffering from any apparent mental illness. Detectives did not promise him anything or pressure him. Detectives Hawkinson and Wilbur were courteous and conversational with defendant. Defendant was alert and articulate, and he is intelligent.
"Detective Hawkinson explained that he was investigating a robbery. Defendant wanted to know why he was being detained. At 4:55 p.m., when Detective Hawkinson finished reading the arrest warrant out loud, defendant said, ‘I'll need a lawyer before I can go any further with you.’ Detective Hawkinson said, ‘No problem. You are afforded that.’ He did not ask defendant any questions, but he told defendant about the searches earlier that day, and he described some of the evidence that implicated defendant in several robberies. When defendant tried to speak, Detective Hawkinson told defendant he did not want defendant to respond. He said he couldn't listen or accept statements from defendant, but he wanted defendant to know why he was in custody. Defendant said he had not robbed anyone, and Detective Hawkinson said he could not accept defendant's answer because he has a right to legal counsel and he's going to get legal counsel before detectives ask any questions.
"Detective Hawkinson gave defendant a cell phone, and defendant called his girlfriend at 5:03 p.m. He returned to the holding cell at 5:04 p.m. Detective Hawkinson told defendant to knock if he needed something. Defendant was dressed in his own clothes, was given a blanket, and was not handcuffed. No one contacted him in the holding cell.
"Defendant knocked at 5:08 p.m. Sgt. Santos responded, and defendant said he wanted to speak to the detective. At 5:10 p.m., Detective Hawkinson contacted him. Defendant said he wanted to talk to him again and have a cigarette. Detective Hawkinson said he would let him smoke, but he would have to get direction about talking. He said, ‘I really do want you to have an opportunity to have your lawyer and talk to him. I don't want to trounce your rights at all. You have the right to have a lawyer.’ Defendant said he understood but wanted to clear his conscience.
"At 5:26 p.m., Detective Hawkinson and Lt. Wilbur opened the cell, told defendant he was being recorded, gave defendant cigarettes, cuffed him in front, and took him downstairs for a smoke break. Detective Hawkinson told defendant repeatedly that he did not have to talk to detectives. He said, ‘You have asked for a lawyer, and you have a right to have that lawyer, okay? I want to make sure that what you're doing is free and voluntary and is completely what you want. And it's not because I'm giving you a smoke break. You've talked to me, okay? And that's what I want to make sure, because you have rights, and I respect your rights. Okay?’ He suggested they finish the smoke break and return to the interview room before he answered defendant's questions.
"When they reached the parking garage in the basement, defendant started talking about how police may have identified him as a suspect. Detective Hawkinson asked him about being followed. Without mention of the robberies for which he was detained, defendant talked about his circumstances, prior criminal involvement, and heroin dealing.
"At approximately 5:36 p.m., when defendant said he remembered the bank (scene of one of the robberies), Detective Hawkinson interrupted and advised defendant of his Miranda rights. Defendant said he understood. Detective Hawkinson said he wanted to be sure defendant understood his rights. Defendant said he understood, but he didn't want to take the rap for someone else. Detective Hawkinson said, ‘More importantly, and you can say no, okay? I want to make sure it's on record that you are coming to me and you want to talk to me, right? I haven't asked you, I haven't reapproached to ask you any more questions, that I want you to have a lawyer before I ask you any questions. Right? You understand that, right?’ Lt. Wilbur noticed defendant was shaking his head, and he asked defendant to speak out loud. Defendant said, ‘Yeah. I understand.’ Lt. Wilbur said, ‘You understand and you want to talk to us?’ Defendant said, ‘Yeah.’ Detective Hawkinson asked, ‘And this isn't because I'm letting you smoke?’ Defendant replied, ‘I know.’
"Defendant told them more about his situation. Around 5:44 p.m., he told detectives he was planning a robbery at Spirit Mountain. Detectives questioned him about his plan, and the conversation continued. He said he took $7,000 from the safe in Cannon Beach.
"At 5:53 p.m., after defendant finished smoking, Lt. Wilbur, another detective, and defendant returned to the interview room on the 13th floor. Detective Hawkinson joined them a few minutes later. Detective Hawkinson advised defendant of his Miranda rights again. Defendant said he understood. Defendant read and signed a written Miranda form at 5:57 p.m. Detective Hawkinson told defendant he did not have to speak to them at all. Defendant said he understood. At 5:58 p.m., Detective Hawkinson suggested they start at the beginning. The interview resumed."
Thereafter, defendant made incriminating statements and confessed to the Cannon Beach hotel robbery.
The trial court explained that defendant "unequivocally invoked his right to counsel at 4:55 p.m. when he told detectives he needed to talk to a lawyer before he could go any further." The court noted that, in response, Hawkinson did not ask any questions or allow defendant to speak further, and that Hawkinson's intent in describing the evidence was to "inform defendant of the reason for his arrest, not to elicit incriminating responses." Accordingly, the court reasoned that the pertinent question was "whether [defendant] made a valid waiver of his right to counsel under Article I, [section] 12, of the Oregon Constitution and the Fifth Amendment to the U.S. Constitution when he answered the detectives’ additional questions."
The trial court concluded that defendant made a knowing and voluntary...
