State v. Flores

• Decision Date: 01 November 1977
• Citation: 570 P.2d 965,280 Or. 273
• Parties: STATE of Oregon, Respondent, v. Armando Zamora FLORES, Petitioner.
• Court: Oregon Supreme Court

Page 965

570 P.2d 965

280 Or. 273

STATE of Oregon, Respondent, v. Armando Zamora FLORES, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 8, 1977.

Decided Nov. 1, 1977.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Burgess, Asst. Atty. Gen., Salem.

BRYSON, Justice.

On November 6, 1975, defendant was arrested on an assault charge. The police took defendant to the police station and informed him of his rights as follows:

"I advised him he had the right to remain silent, that anything he said would be used against him in a court of law; he had a right to have a lawyer and have him present while he was being questioned, and if he could not afford to hire one, the Court would appoint one to him at no expense to himself."

The police informed defendant of his rights in English. Defendant speaks some English, but his primary language is Spanish. However, when an officer asked defendant in Spanish whether he understood his rights, defendant answered that he did and signed the form.

Defendant chose not to exercise his Miranda rights and was interrogated for approximately four hours. At some time during the questioning defendant became a suspect in a murder case, which is the subject of the present appeal.

Defendant had two keys in his possession when he was arrested. The police asked about them and defendant said they were keys for lockers at the Greyhound Bus Depot. An officer asked defendant (in Spanish) for permission to search the lockers. He did not inform defendant that he need not consent. Defendant consented. The police searched the lockers and discovered property missing from the murder victim's home.

The police continued to question defendant. When defendant asked for an attorney, the police stopped questioning him. However, defendant then asked, "What happens now?" An officer told him in Spanish that he would be charged with murder and outlined the evidence against him. During this conversation, defendant admitted killing the victim. After again being advised of his rights, defendant confessed to killing the victim in self-defense.

At the pretrial hearing, the trial court made the following findings:

" * * *.ria

"3. The Defendant was fully and properly advised of all his Constitutional rights in both English and Spanish.

"4. The Defendant fully understood his rights.

"5. After being fully advised, the Defendant did make statements freely and voluntarily and did consent to a search of the bus lockers under his control.

"6. All statements made by the Defendant were freely and voluntarily made and were not the product of any threats, promises or coercion of any nature whatsoever.

"7. After making numerous statements, the Defendant did request an attorney, at which time the questioning was terminated.

"8. After termination of questioning, the Defendant did enter into conversation with an officer and did voluntarily assert that he had committed the homicide in question.

"9. The admission regarding the homicide was not the result of interrogation but was a decision of the Defendant."

The court therefore refused to suppress the confession or the items taken from the lockers. After trial on defendant's plea of not guilty, the jury returned a verdict of guilty of murder and robbery. Judgment was entered on the verdict. The Court of Appeals affirmed without opinion, 27 Or.App. 428, 556 P.2d 1391 (1976).

Defendant filed a petition for review, contending that his consent to the search was invalid because he had not been informed by the police that he could refuse consent. His argument was based on State v. Williams, 248 Or. 85, 432 P.2d 679 (1967), and State v. Douglas, 260 Or. 60, 488 P.2d 1366 (1971).

In State v. Williams, supra, a case factually similar to the case at bar, a majority of this court held that the evidence seized as a result of a search with the defendant's consent was not admissible because the defendant was not advised of his rights. But in that case the decision was based on the Fifth Amendment of the Federal Constitution when the U.S. Supreme Court had not ruled on the question now before us. It was not based on Article 1, Sec. 9, of the Oregon Constitution. In State v. Douglas, supra, a majority of this court held that under the facts of that case "the police officers were under no duty to affirmatively inform defendant of his constitutional right to refuse consent to a search of his suitcase before asking if he would consent to an examination of its contents. To hold otherwise would, in our view, emphasize form over substance and permit the making of a 'game' out of the use of Fourth Amendment rights by defendants who have admitted knowledge of such rights." (260 Or. at 73-74, 488 P.2d at 1373). Again, that opinion was prior to the U.S. Supreme Court ruling on the question and was not based on Article 1, Sec. 9, of the Oregon Constitution.

We granted review and in the letter stating the questions for review noted that United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) held not only that a defendant in custody need not be told of his right to refuse consent to search, but also that the fact that a defendant in custody, not aware of his right to refuse consent, is not to be given controlling significance. We also raised sua sponte the question whether this court ought to look to the Oregon Constitution in reviewing the apparent conflict between State v. Williams, supra, and United States v. Watson, supra. If so, we further asked whether we should adhere to our decision in State v. Williams, supra, or whether we should interpret the Oregon Constitution so as to agree with the result in United States v. Watson, supra.

We first observe that the interpretation given the Fourth Amendment to the United States Constitution in United States v. Watson, supra, and in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), constrains us to hold that defendant's federal constitutional rights were not violated in this case. Schneckloth held:

" * * * (T)he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. * * * " 412 U.S. at 227, 93 S.Ct. at 2048.

Schneckloth expressly reserved the question of whether the same result applied to custodial arrests. Watson held that the same result did apply (423 U.S. at 424, 93 S.Ct. 2041).

In the case at bar, the police used no force or threat of force, made no promises, and used no other forms of coercion in obtaining defendant's consent to the search. ¹ Despite this apparent absence of coercion, defendant claims that his consent was not his own "essentially free and unconstrained choice" because his will had been "overborne and his capacity for self-determination critically impaired," Schneckloth v. Bustamonte, supra at 225, 93 S.Ct. at 2047, because of the following factors: (1) he had been arrested; (2) there was no proof that he knew he could withhold his consent; and (3) he had been taken to the police station. However, United States v. Watson, supra, holds that the first two factors are not dispositive. The only difference between this case and Watson is that the defendant in that case had not been taken to the police station. The question, then, based on the U.S. Supreme Court's analysis in Watson, is whether that court would hold that the suspect's being taken to the police station was "to be given controlling significance" (423 U.S. at 424, 96 S.Ct. 820) so as to require proof of his knowledge that he could withhold consent. We are of the opinion that it would not. Defendant had been properly arrested, had been informed of his Miranda rights, and had not been subjected to any coercion. Under these circumstances, we believe that his being in the police station is not controlling but is merely another factor in determining voluntariness.

After arguments by the parties on both the Federal and Oregon Constitutions, we are now of the opinion that we should consider the Oregon Constitution in order to make a final ruling on this issue, although the defendant failed to invoke Article 1, Sec. 9, of the Oregon Constitution in the trial court, on appeal to the Court of Appeals, and in his petition for review. Although the general rule precluding appellate review of questions not raised in the trial court applies to constitutional questions, see Alpha Corp. v. Multnomah Co., 182 Or. 671, 680, 189 P.2d 988 (1948), we have adopted a rule of flexibility in cases involving an individual's liberty. State v. O'Neill, 274 Or. 59, 65, 545 P.2d 97 (1976). Where as here, the record is sufficient to make the constitutional determination, we will do so.

Although we are bound by the United States Supreme Court's interpretation of the Federal Constitution, we are at liberty to adopt a stricter test under our own constitution. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); State v. Evans, 258 Or. 437, 442, 483 P.2d 1300 (1971). However, we see no persuasive reason to do so.

The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297, 318-19 (1977), suggests four criteria that state courts should consider in engaging in an independent interpretation of their own state constitutions. They are: (1) the similarity of the state and federal provisions; (2) relevant state precedents; (3) unique local conditions; and (4) the position taken by the United States Supreme...