State v. DeLong

• Decision Date: 18 June 2015
• Docket Number: SC S062176.,CA A146907,CC 09CR1050FE
• Citation: 357 Or. 365,350 P.3d 433
• Parties: STATE of Oregon, Petitioner on Review, v. William Rick DELONG, Respondent on Review.
• Court: Oregon Supreme Court

357 Or. 365

350 P.3d 433

STATE of Oregon, Petitioner on Review

v.William Rick DELONG, Respondent on Review.

CC 09CR1050FE

CA A146907

SC S062176.

Supreme Court of Oregon, En Banc.

Argued and Submitted Oct. 8, 2014.

Decided June 18, 2015.

Michael A. Casper, Deputy Solicitor General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Daniel C. Bennett, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Shauna M. Curphy, Portland, filed the brief for amici curiae Oregon Justice Resource Center, Albina Ministerial Alliance Coalition for Justice and Police Reform, The Portland Chapter of the National Lawyers Guild, Inc., and the American Civil Liberties Union Foundation of Oregon, Inc. With her on the brief were Sara F. Werboff and Jordan R. Silk.

Opinion

KISTLER, J.

During a traffic stop, a deputy sheriff placed defendant in custody and then asked him, without first advising him of his Miranda rights, “if there was anything we should be concerned about” in his car. Defendant “told [the deputy] ‘no,’ and that if we wanted to search the vehicle, we could.” On appeal, the state conceded that the deputy violated Article I, section 12, of the Oregon Constitution when he asked defendant that question without first advising him of his Miranda rights. The state argued, however, that the physical evidence that the deputies later found in defendant's car did not “derive from” the Miranda violation. The Court of Appeals disagreed. State v. Delong, 260 Or.App. 718, 320 P.3d 653 (2014). Relying on State v. Vondehn, 348 Or. 462, 236 P.3d 691 (2010), the Court of Appeals reasoned that both defendant's offer and the resulting evidence derived from the violation. Having allowed the state's petition for review, we reverse the Court of Appeals decision and remand this case to the Court of Appeals.

Sergeant Robeson worked for the Douglas County Sheriff's office.¹ One evening, while Robeson was on patrol, defendant's car pulled out in front of Robeson. Apparently noticing Robeson's marked patrol car behind him, defendant “immediately pulled off” into a store parking lot. Robeson continued driving, went around the corner, and pulled over to the side of the road to see if defendant would resume driving once Robeson passed by. “[A] few seconds later,” defendant drove past Robeson. In doing so, defendant confirmed Robeson's suspicion that he had been trying to avoid Robeson, and he also gave Robeson the opportunity to see that he was not wearing a seat belt.

Robeson stopped defendant for that traffic violation. See ORS 811.210 (requiring that drivers wear seat belts). He approached defendant's car and asked him for his driver's license, registration, and proof of insurance. Defendant gave Robeson his name but could not produce a driver's license or other picture identification. Driving without a license is a traffic offense; however, it is a defense to that charge that the driver in fact had a valid license. See ORS 807.570. Robeson sought to determine defendant's identity so that he could see if defendant in fact had a valid license. Robeson also wanted to identify defendant to see if there were a reason why defendant apparently had sought to avoid him; specifically, Robeson wanted to see if there were an outstanding warrant for defendant's arrest.

There was a passenger in defendant's car, and Robeson removed defendant from his car, frisked and handcuffed him, and put him in the backseat of the patrol car before asking him some background questions to verify his identity.² At that point, Robeson had not advised defendant of his Miranda rights. After asking some questions regarding defendant's identity, Robeson asked defendant “if there was anything we should be concerned about” in his car.³ In response to that question, defendant “told [Robeson] ‘no,’ and that if we wanted to search the vehicle, we could.”⁴ Robeson relayed that response to another deputy, who had arrived at the traffic stop. The second deputy searched defendant's car and found what appeared to be marijuana residue in an ashtray underneath the driver's seat. He then opened a canvas fanny pack that was inside the car, where he found methamphetamine and drug paraphernalia. At that point, the second deputy advised defendant of his Miranda rights. Defendant stated that he understood his rights and then acknowledged that the methamphetamine and drug paraphernalia were his.

Before trial, defendant moved to suppress both the physical evidence found during the search of his car and the statements that he made afterwards on the ground that the deputies had unlawfully extended the stop. At the hearing on that motion, defendant raised another ground for suppressing that evidence. He argued that, when Robeson asked him if there were anything he should be concerned about in the car, Robeson violated his state and federal Miranda rights.⁵

In the trial court, the state responded that Robeson's question did not constitute interrogation. In the state's view, that question was no different from the background questions regarding identity that had preceded it. The trial court denied defendant's suppression motion. It ruled that the deputies had not unlawfully extended the stop, and it agreed with the state that Miranda warnings were not required, apparently on the ground that Robeson's question had not constituted interrogation. The trial court accordingly denied defendant's suppression motion and ruled that the physical evidence found in defendant's car and the warned statements that he made to the second deputy were admissible at his trial. Considering that and other evidence, the jury found defendant guilty of possessing methamphetamine.

On appeal, defendant challenged the trial court's ruling on his suppression motion. He argued that, once Robeson placed him in the back of his patrol car and handcuffed him, Article I, section 12, required Robeson to advise him of his Miranda rights before asking him whether there was anything in his car that should concern the deputies.⁶ The state, in response, conceded that Robeson had violated Article I, section 12, of the Oregon Constitution when he asked defendant that question without first advising him of his Miranda rights. The state argued, however, that, because defendant's invitation to search his car attenuated the taint of the Miranda violation, the physical evidence that the deputies discovered in the car was not the product of the violation.

The Court of Appeals held that Article I, section 12, required Robeson to advise defendant of his Miranda rights before asking him if there was anything in the car that should concern the deputies. Delong, 260 Or.App. at 724, 320 P.3d 653. It also held that the physical evidence the deputies found in defendant's car “derived from” that violation under this court's decision in Vondehn. Id. at 726–27, 320 P.3d 653. The court reasoned that Robeson “exploited, or took advantage of, the Article I, section 12, violation to obtain [defendant's] consent; he offered consent during a custodial interrogation while denying any wrongdoing.”Id. at 727, 320 P.3d 653. The court accordingly held that the trial court should have suppressed the physical evidence discovered in defendant's car and the statements that defendant made after receiving Miranda warnings.

We allowed the state's petition for review to consider whether, under Article I, section 12, the physical evidence that the deputies discovered in defendant's car “derived from” the earlier Miranda violation. See Vondehn, 348 Or. at 476, 236 P.3d 691 (stating that standard). On that issue, defendant argues that, because his invitation to search his car was the foreseeable result of the deputy's unwarned question, the evidence that the deputies found in his car derived from that Miranda violation and should be suppressed. The state responds that, because Miranda is a judge-made rule and not a constitutional right, we should suppress only the evidence that resulted directly from the Miranda violation. In the state's view, we should not suppress the evidence that resulted directly from a Miranda violation and the “fruit of the poisonous tree,” as we ordinarily do for state constitutional violations.⁷ Alternatively, the state argues that, even if we suppress both the direct evidence resulting from the Miranda violation and the “fruit of the poisonous tree,” our Article I, section 9, cases demonstrate that the evidence that the deputies found in defendant's car was not the fruit of the poisonous tree and thus did not derive from the Miranda violation.

Our decision in Vondehn provides the starting point for our analysis. Accordingly, we first describe that decision. We then explain that the specific holding in Vondehn does not control the resolution of this case. We also explain that, even if we apply the remedial standard that we ordinarily apply to Article I, section 9, violations, defendant's invitation to search his car attenuated the taint from the Miranda violation. Finally, we address defendant's argument and the dissents' view that, even if defendant's invitation to search his car would be sufficient to attenuate the taint of an Article I, section 9, violation, his invitation was not sufficient to attenuate the taint of an Article I, section 12, violation.

We begin with our decision in Vondehn. In that case, the officers asked the defendant whether he owned a backpack found in a stopped car, whether it contained marijuana, and whether they could search it. Vondehn, 348 Or. at 484, 236 P.3d 691. The defendant answered “yes” to each of those questions. Id. Pursuant to the defendant's consent, the officers searched his backpack, found marijuana, advised the defendant of his Miranda rights, and then asked him additional questions...