State v. Heise-Fay

• Decision Date: 07 October 2015
• Docket Number: 10CR0469,A150955.
• Citation: 360 P.3d 615,274 Or.App. 196
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Lindy D. HEISE–FAY, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 196

360 P.3d 615

STATE of Oregon, Plaintiff–Respondent,

v.Lindy D. HEISE–FAY, Defendant–Appellant.

10CR0469

A150955.

Court of Appeals of Oregon.

Argued and Submitted March 26, 2014.

Decided Oct. 7, 2015.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Michael Seung Moak Shin, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin C. Lagesen, Assistant Attorney General.

Opinion

ORTEGA, P.J.

Defendant challenges her convictions entered after a conditional guilty plea for hindering prosecution, unlawful delivery of marijuana, and two counts of endangering the welfare of a minor, assigning error to the trial court's denial of her motion to suppress. She contends that law enforcement officers failed to give her Mirandawarnings under compelling circumstances, and that the court should have suppressed her incriminating statements and evidence discovered after the circumstances became compelling.¹We agree with defendant, and reverse and remand.

We state the facts consistently with the trial court's factual findings that are supported by sufficient evidence in the record and its decision denying defendant's motion to suppress. State v. Shaff,343 Or. 639, 641, 175 P.3d 454 (2007). A Department of Human Services (DHS) employee contacted Calvert, the parole and probation officer for Daly, to inform him that Daly was possibly at defendant's house in rural Josephine County. Daly was wanted for absconding from supervision for drug-related convictions. The DHS employee also passed on information concerning a possible drug operation and the presence of children at the residence.

Accordingly, Calvert, Parole Officer Scaglione, Detective Myers, Detective Snyder, Sergeant Johnson, a Josephine County Sheriff's Office K–9 Deputy (with his police dog), and two DHS child welfare workers visited the house in three unmarked vehicles and one Josephine County Sheriff's Office vehicle. Myers, Scaglione, and the K–9 Deputy parked their vehicle in a neighbor's driveway (out of sight of defendant's house) and approached the back of the house from the neighbor's property. The rest of the officers parked their vehicles in defendant's driveway, and Calvert and Snyder, each dressed in civilian clothes with badges, handcuffs, and holstered guns visible, approached the front door.

Defendant answered the door. Calvert introduced himself and informed defendant that they were looking for Daly and had received information that he was at the house, that “there were some children there,” and that “there was possible illegal marijuana activities going on there.” Defendant told Calvert that Daly had “gone fishing with a friend and that he was not home.” When pressed, defendant gave conflicting information about when and with whom Daly had left, and appeared “dishonest” to Calvert. Calvert and the deputy continued to question defendant. Meanwhile, the officers in the back of the house spotted Daly hiding behind a woodshed and apprehended him. Myers questioned Daly, who indicated that he had been fixing breakfast in the kitchen of the house when they arrived. Calvert heard an officer exclaim from the back of the house that Daly was in custody and walked to the back of the house where he observed Daly in handcuffs. Snyder remained at the front door with defendant.

Calvert informed Myers that defendant had told him that Daly was not at the house and that she had appeared to be lying. By that time, Snyder and defendant had also walked to the back of the house. Myers asked defendant if she “would be willing to step around to the front of the residence” and speak to him. Defendant assented. Once in the front, Myers asked defendant a series of questions: Who was at the house when police arrived? Where was defendant when the police arrived? Where was Daly when the police arrived? Did defendant know that Daly had warrants for his arrest? Although defendant's answers to those questions are not apparent in the record, defendant did inform Myers that she did not know that Daly was at the house. Myers responded that he knew that defendant was lying because Daly had told Myers that he was at the house when they arrived. Myers later testified at the suppression hearing that

“I advised her that I believed that she was lying to me because I had already spoken to * * * Daly, and I advised her that I had no intentions of taking her into custody. She could be in trouble for hindering prosecution, but I had no intentions of taking her into custody if she was honest and cooperative.”²

Defendant then admitted that she had known that Daly was at the house.

Myers asked defendant if she had a medical marijuana “grow” on her property, and she answered that she did. She indicated that she was growing 12 plants—six for herself and six for a patient. Defendant offered to show Myers the grow site, which was across the driveway from the house and partially obstructed. Myers observed 12 mature plants and 3 immature plants. Myers and defendant discussed the legality of the marijuana grow, including whether there was additional marijuana on the property. Defendant indicated that she had two mature plants in the house and two or three ounces of marijuana. Myers again

“assured her that I had no intentions of taking her to jail. I even asked her that if she was going to continue to be honest and cooperative, and she assured me that she would. And I asked her if she was going to be willing to consent to a search of the residence, and she stated that she would.”

Myers asked defendant about paperwork documenting the marijuana grow, and defendant invited Myers into the home to view the documentation. Defendant, however, failed to produce paperwork that would authorize all of the plants observed by Myers. Myers left the house to call the Oregon Medical Marijuana Program on his mobile phone to verify the quantity that defendant was authorized to grow. Once outside the house, Myers asked Snyder to ask defendant to sign a written consent to search form.

Snyder presented defendant with a consent to search form that also had the Mirandawarnings printed on the back. Defendant read the front and back, and signed the consent to search form. Snyder then began searching the house with Johnson. The officers found additional marijuana plants and evidence indicative of drug sales. At some point after the officers had begun searching the house and had observed incriminating evidence, Johnson orally gave defendant Mirandawarnings. She indicated that she understood the warnings. The officers continued searching, and defendant admitted to Myers that she had sold marijuana. The officers collected evidence, cited defendant, and left more than two hours after they had arrived. Throughout the encounter, the officers were calm and cordial with defendant.

Defendant was charged with crimes related to the unlawful manufacture, delivery, and possession of marijuana, hindering prosecution, child neglect, and endangering the welfare of a minor. After the trial court denied her motion to suppress, she entered a conditional guilty plea to charges of hindering prosecution, unlawful delivery of marijuana, and two counts of endangering the welfare of a minor. She appeals the resulting judgment, assigning error to the denial of her motion to suppress and arguing that the officers violated Article I, section 12, of the Oregon Constitutionand the Fifth Amendment to the United States Constitution. We review the trial court's denial of a motion to suppress for legal error. State v. Ehly,317 Or. 66, 75, 854 P.2d 421 (1993).

We begin with the state constitutional issue. See Sterling v. Cupp,290 Or. 611, 614, 625 P.2d 123 (1981)(“The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim.”). Article I, section 12provides, in part, that “[n]o person shall be * * * compelled in any criminal prosecution to testify against himself.” To protect a person's right against compelled self-incrimination under the Oregon Constitution, Mirandawarnings must be given before questioning when a person is in “full custody” or in “circumstances that create a setting which judges would and officers should recognize to be compelling.” Shaff,343 Or. at 645, 175 P.3d 454(internal quotation marks omitted).

Whether defendant was in compelling circumstances turns on “how a reasonable person in [her] position would have understood * * * her situation.” Id.“A suspect is placed in ‘compelling circumstances' when a ‘reasonable person in the suspect's position would have felt compelled to answer a police officer's questions.’ ” State v. Schwerbel,233 Or.App. 391, 395, 226 P.3d 100 (2010)(quoting State v. Bush,203 Or.App. 605, 610, 126 P.3d 705 (2006)). That inquiry requires us to consider the totality of the circumstances, and the “overarching inquiry is whether the officers created the sort of police-dominated atmosphere that Mirandawarnings were intended to counteract.” State v. Roble–Baker,340 Or. 631, 641, 136 P.3d 22 (2006). The nonexclusive factors we consider to make that determination include (1) the location of the encounter; (2) the length of the encounter; (3) the amount of pressure exerted on the defendant, including whether an officer has used evidence of guilt in a coercive manner; and (4) the defendant's ability to terminate the encounter. Id.at 640–41, 136 P.3d 22. We also examine the number of officers and police cars at the scene, the demeanor of the investigating officer, and the use of physical force or confinement during questioning. Schwerbel,233 Or.App. at 395, 226 P.3d 100.

Defendant asserts that her interaction with Myers placed her in compelling circumstances no later than the moment when Myers and defendant walked to the front of the residence, after Daly...