State v. Reed
| Docket Number | A170999,A171000 |
| Decision Date | 09 February 2022 |
| Citation | 317 Or.App. 453 |
| Parties | STATE OF OREGON, Plaintiff-Respondent, v. DEBORAH LYNN REED, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Argued and submitted January 27, 2021.
Lincoln County Circuit Court 19CR12088, 18CR64481; Sheryl Bachart, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
SHORR, J Defendant appeals from a judgment of conviction for various drug crimes, raising two assignments of error. In the first defendant contends that the trial court erred in partially denying her motion to suppress statements that she made without Miranda warnings in violation of Article I, section 12, of the Oregon Constitution and evidence derived from that violation. In the second, she argues that the court erred in imposing a sentence of imprisonment that exceeded the statutory maximum. Defendant also appeals from a judgment revoking her probation in another case, on the ground that a reversal of her convictions will require a reversal and remand of the probation revocation as well. As we explain below, we conclude that the trial court did not err in denying her motion to suppress because defendant was not in compelling circumstances when she made the unwarned statements. As to defendant's second assignment, it is unpreserved, and we decline to exercise our discretion to review it as plain error. Accordingly, we affirm.
We review the trial court's denial of a defendant's motion to suppress for legal error and are bound by the court's findings of historical fact if there is constitutionally sufficient evidence in the record to support them. State v. Love-Faust, 309 Or.App. 734, 736, 483 P.3d 45, adh'd to as modified on recons, 311 Or.App. 756, 489 P.3d 149 (2021). We set out the facts consistently with the trial court's explicit and implicit findings and its decision denying, in part, the motion to suppress. Id. Defendant was on probation in an earlier case. The terms of her probation required her, among other things, to attend meetings with her probation officer. In accordance with those conditions, defendant attended a prearranged meeting with her probation officer, Officer Eoff, at the Lincoln County Parole and Probation office to discuss her compliance with her probation.
Around the time of her meeting, Officer Bales of the Newport Police Department received information from a confidential informant that defendant had sold methamphetamine. The informant told Bales that defendant had sold drugs earlier that same day and likely still possessed drugs on her or in her car. Because Bales was responding to another call when he received that information, he contacted Sergeant Haynes and Officer Humphreys, also of the Newport Police Department.
Haynes and Humphreys located defendant's car soon after, parked at the parole and probation office. Defendant was still inside meeting with Eoff. The officers went inside the office and found defendant in her meeting. Humphreys knocked on the door to Eoff s office, "stuck [his] head in" the doorway, and asked to speak with both Eoff and defendant. Eoff and defendant agreed, and the officers entered the office. Humphreys sat in a chair and Haynes stood near the doorway. Haynes explained "that they were there because they had information that * * * defendant was selling drugs." Haynes told defendant "that he knew she was selling drugs again and asked her how much she had on her." In response, defendant "denied having drugs on her and offered up her purse and her person for search." Haynes did not respond to defendant's offer but instead "asked [defendant] if [he] could search her vehicle, if there was any in her vehicle." Defendant denied having drugs in her car, and handed Haynes the keys to her car.
After giving her keys to Haynes, defendant "offered reasons why she was selling," explaining that she "was trying very hard" and had had difficulty finding work. Haynes told defendant that he was going outside to search her car and that Humphreys would remain inside with defendant. He explained that defendant could revoke her consent to the search "at any time" by telling Humphreys, who would notify Haynes of defendant's revocation by radio. That initial interaction lasted "approximately [two] minutes." Eoff was present but did not make any statements or ask defendant questions.
Bales arrived to help Haynes search defendant's vehicle. During the search, the officers discovered methamphetamine, heroin, and other drug paraphernalia. Meanwhile, Humphreys continued questioning defendant in Eoff s office and also in a conference room in the building. Defendant made incriminating statements. Humphreys also searched defendant's purse and phone and discovered incriminating evidence during those searches. The questioning lasted about 30 minutes. Defendant was never advised of her Miranda rights. At the conclusion of the questioning and searches, defendant was arrested and charged with various crimes relating to the sale and possession of methamphetamine and heroin.
At the motion to suppress hearing, the officers testified that defendant was not required to talk to them and was free to end the questioning at any time. Eoff testified that defendant was not free to leave the parole and probation office. Once defendant arrived at the parole and probation office for her scheduled meeting, Eoff expected her to stay at the office until the meeting was complete. According to Eoff, if defendant had left the meeting early without an approved excuse, she could have violated the terms of her probation. In addition, Eoff explained that "defendant had to be escorted at all times in and out of his office or the conference room because of the rules of the [parole and probation] office."
Defendant moved to suppress the statements she made in response to the officers' questioning and the evidence discovered in her car, purse, and phone. She argued that the officers had violated her Article I, section 12, right by interrogating her in compelling circumstances without first advising her of her Miranda rights. She further argued that her consent to the search of her car, purse, and phone was the product of that Miranda violation. The state argued, in response, that Miranda warnings were not required because defendant was not in compelling circumstances during any part of the 30-minute encounter with Haynes and Humphreys.
The trial court determined that "the officers did not exert the type of pressure that results in a finding of compelling circumstances within the first [two] minutes of the encounter." Therefore, the court declined to suppress defendant's statements during her initial interaction with Haynes "up to the time that [Haynes] left the room with defendant's car keys," as well as the evidence discovered during the search of her car. However, the court concluded that the state had failed to prove that circumstances were not compelling during the later questioning. As a result, the court granted defendant's motion to suppress all of the statements that defendant made after Haynes left Eoff s office, and the evidence discovered during Humphrey's searches of defendant's purse and phone.
Defendant challenges the trial court's partial denial of her motion to suppress. The parties raise substantially the same arguments on appeal as they did in the trial court. Defendant contends that she was in compelling circumstances during the initial two-minute encounter with the police and that her unwarned statements during that encounter should be suppressed. She further contends that her consent to search her vehicle was the product of that Miranda violation and that the evidence discovered as a result of that consent should also be suppressed.[1] The state argues that defendant was not in compelling circumstances, and that, if Miranda warnings were required, defendant's voluntary consent to search was attenuated from the violation such that the evidence discovered in the car is admissible.
Article I, section 12, provides 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 that section, police must give Miranda warnings before interrogating a suspect who is in custody or compelling circumstances. State v. Nichols, 361 Or. 101, 107, 390 P.3d 1001 (2017). In determining whether compelling circumstances exist, the "overarching inquiry is whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended to counteract." State v. Roble-Baker, 340 Or. 631, 641, 136 P.3d 22 (2006). When so inquiring, we consider the totality of the circumstances, including the following nonexclusive factors: (1) the location of the encounter; (2) the length of the encounter; (3) the amount of pressure exerted on the defendant; and (4) the defendant's ability terminate the encounter. Id. at 640-41. The "question whether the circumstances were compelling does not turn on either the officer's or the suspect's subjective belief or intent; rather, it turns on how a reasonable person in the suspect's position would have understood [the] situation." State v. Shaff, 343 Or. 639, 645, 175 P.3d 454 (2007).
Defendant primarily argues that the circumstances were compelling in the following ways. First, the encounter was in her probation officer Eoff s office, and he...
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