State v. Vondehn

• Decision Date: 30 April 2008
• Docket Number: A128800.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Hyatt Robin VONDEHN, Defendant-Appellant.
• Court: Oregon Court of Appeals

184 P.3d 567

219 Or. App. 492

STATE of Oregon, Plaintiff-Respondent, v. Hyatt Robin VONDEHN, Defendant-Appellant.

A128800.

Court of Appeals of Oregon.

Argued and Submitted December 19, 2007.

Decided April 30, 2008.

David J. Celuch argued the cause and filed the brief for appellant.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen Cegla, Assistant Attorney General.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

BREWER, C.J.

Defendant appeals his convictions, after a stipulated facts trial, for one count each of delivery of a controlled substance and possession of a controlled substance under former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). He assigns error to the trial court's refusal to suppress evidence that the police obtained through a consent search while he was under arrest on an unrelated matter and its refusal to suppress statements that he made after the search and after receiving Miranda warnings. We reverse and remand.

The facts are generally undisputed. We state them in accordance with the trial court's findings, supplemented as necessary by additional evidence in the record. On the early morning of April 2, 2004, defendant was a passenger in a car on a road in Washington County. The driver was Sawyer, whose parents owned the car. Officer Stoneberg stopped the car to investigate a traffic violation and possible driving under the influence of intoxicants. As Stoneberg approached the car from the rear, he smelled an odor of fresh marijuana. He asked Sawyer to get out of the car and took her toward its rear; in doing so he noticed that the odor of marijuana was stronger at the rear of the car than at the front. Officer Espelien arrived shortly after Stoneberg stopped the car and approached it from the passenger side. In doing so, he also noticed an odor of marijuana coming from the car that was stronger than a single ounce would produce. Espelien then asked defendant for identification, partly to determine if defendant was under 18 and thus violating a curfew ordinance and partly because he believed that the car contained more than an ounce of marijuana and wanted to determine who defendant was before investigating further.¹

Defendant did not have any identification. He gave Espelien a name and date of birth that did not check out. When Espelien asked defendant about the inconsistency, defendant gave him his true name and date of birth. With that information, Espelien determined that there was a warrant for defendant's arrest; the officers then arrested defendant, handcuffed him, and put him in the back seat of Stoneberg's police car.

Stoneberg then asked Sawyer for permission to search her car, which she gave. The officers found nothing in the passenger compartment. The only item in the trunk was a backpack that smelled of marijuana. Sawyer stated that she did not know who owned the backpack. Based on the strength of the odor, Stoneberg believed that there was a substantial amount of marijuana in the backpack. He took the backpack to defendant and asked him if it was his. Defendant said that it was. Stoneberg then asked whether there was marijuana inside; defendant said that there was. After that answer, Stoneberg asked for permission to look inside the backpack, and defendant consented. Stoneberg then searched the backpack and found two grocery bags that together contained approximately four ounces of marijuana. He gave defendant Miranda warnings and asked him where he got the marijuana, how much was in each bag, what the marijuana cost, and whether defendant was a middle man. Defendant answered each of those questions. When Stoneberg began seeking more detail, defendant stated that he wanted to talk to a lawyer. Stoneberg then stopped his questioning.

During the entire time that Stoneberg questioned defendant, including when defendant consented to the search of the backpack, defendant was under arrest, handcuffed, and in the back seat of a police car. Neither Stoneberg nor Espelien made any threats or promises, raised his voice, or drew a weapon at any time during the encounter. All of the questions and answers had a conversational rather than coercive tone.

Defendant filed a motion to suppress the statements that he made to Stoneberg both before and after he received Miranda warnings and to suppress evidence of the contents of the backpack. The trial court suppressed the pre-Miranda statements but otherwise denied the motion. Defendant subsequently agreed to a stipulated facts trial that relied primarily on the evidence that the court had refused to suppress; a different judge found him guilty based on that evidence.

On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence of the contents of the backpack and of his statements made after he received Miranda warnings. He argues first that his consent to search his backpack was invalid because of the officer's unlawful pre-Miranda questioning and that the police exploited that illegal questioning in obtaining his consent. He then argues that the post-Miranda questioning was a fruit of the original illegal questioning and of the allegedly unlawful search. We agree that both the search and the post-Miranda questioning were unlawful because Stoneberg impermissibly exploited defendant's pre-Miranda statements in order to obtain his consent to the search and to obtain his answers to the later questions. We therefore reverse his convictions.

We begin our analysis with defendant's pre-Miranda statements because the reason that the trial court correctly suppressed them helps frame our discussion of defendant's assignments of error.² Article I, section 12, of the Oregon Constitution provides that a person has the right not to be compelled to testify against himself; that right applies whenever the person is subject to custodial interrogation. State v. Scott, 343 Or. 195, 201, 166 P.3d 528 (2007). As part of guaranteeing the right not to be compelled to testify, the police must provide Miranda warnings before conducting any interrogation when the person is in full police custody or otherwise under compelling circumstances. State v. Roble-Baker, 340 Or. 631, 638, 136 P.3d 22 (2006); State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990); State v. Magee, 304 Or. 261, 263, 744 P.2d 250 (1987). The purpose of the warnings is to help ensure that any statement that the person makes is the product of the person's free choice rather than of the inherently coercive nature of police custody. Roble-Baker, 340 Or. at 641, 136 P.3d 22; State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182 (1983). Deterring police misconduct is at most a minor reason for requiring the warnings. See State v. Rowe, 79 Or.App. 801, 804-05, 720 P.2d 765, rev. den., 302 Or. 86, 726 P.2d 1185 (1986).

Applying those principles to the pre-Miranda questioning in this case is straightforward. When Stoneberg questioned defendant, defendant was under arrest, handcuffed, and in a police car. The questions treated defendant as a suspect in the commission of a crime. Even though the reason for the arrest was not related to the subject of the questioning, those circumstances were sufficient to require Miranda warnings in order to protect defendant's state constitutional right against compelled testimony. State v. Dorey, 100 Or.App. 457, 786 P.2d 1288, rev. den., 310 Or. 133, 794 P.2d 795 (1990).³ The police did not provide the required warnings, and as a consequence, defendant's pre-Miranda statements are not admissible against him. As noted, the trial court's ruling was consistent with that analysis.

In his first assignment of error, defendant asserts that the trial court erred in failing to suppress the contents of the backpack. He argues both that his consent to the search was involuntary and that, even if his consent was voluntary, the police obtained it by exploiting the statements that he made before receiving Miranda warnings. Because we agree that defendant's consent was ineffective because the police exploited his pre-Miranda statements in order to obtain it, we do not consider whether the consent was also involuntary.⁴

In State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), the Supreme Court described the criteria for determining when a police violation of a defendant's right under Article I, section 9, to be free of an unlawful search or seizure may vitiate a later voluntary consent to a search. In this case, the police violated defendant's right under Article I, section 12, not to testify against himself, which includes the right not to make statements without receiving Miranda warnings. Before deciding whether the police obtained defendant's consent by exploiting his non-Miranda statements, we must first determine whether the analysis that the court established in Hall for violations of Article I, section 9, also applies to violations of Article I, section 12. We conclude that a search that is based on consent that derives from a previous violation of a defendant's rights under either constitutional provision—and that is thus the result of exploiting the violation—in itself violates those rights.

We begin with the Supreme Court's analysis in Hall. In that case, an officer illegally stopped the defendant by obtaining his identification for a warrant check without having a reasonable suspicion of criminal activity. The officer then obtained the defendant's consent to a search. 339 Or. at 19, 115 P.3d 908. In discussing the defendant's consent, the Supreme Court noted that there were two ways in which the illegal seizure could have affected the validity of that consent. First, the illegal seizure could be relevant to the voluntariness of the consent. In every case, the state must prove that, under the totality of the circumstances, the defendant's consent was an act of free...