Oregon Supreme Court 4-26-2012
by: Abassos • April 26, 2012 • no comments
Miranda Violation - Later Statements Derived from Initial Violation
Statements must be suppressed where they are a product of an earlier Miranda violation. Here, 16 hours after defendant gave a Mirandaless statement in compelling circumstances, the officers did a video reenactment of defendant's story where he made further statements. This second set of statements, the court says, was derived from the initial Miranda violation because:
The identity between the two sets of statements and the state's use of defendant's unwarned statements in the video reenactment persuade us that the break in time and the absence of compelling circumstances during the reenactment were not sufficient to break the causal chain.
Later that day, defendant voluntarily submitted to a polygraph. He was given Miranda warnings at that time and, indicating he understood, said "I can, at any time, decide that I would like a lawyer or not answer any further questions." Defendant failed the polygraph, was interrogated by the polygrapher and confessed to murder. The polygraph statements were not derived from the initial violation because defendant was given and clearly understood his Miranda rights. The court distinguishes today's case from one in which there's a pre-Miranda confession, followed by Miranda warnings and then a repetition of the first statement. In today's case, defendant admitted abusing his child for the first time in the post-polygraph statements. Thus, the Miranda warnings were "effective to purge the taint of the prior violation and ensure a knowing and voluntary waiver of defendant's right to remain silent."
C.J. DeMuniz writes a concurrence to urge a uniform text for criminal polygraph consent forms. The absence of such forms, says the Chief Justice, results in unnecessary litigation and expense. The takeaway for defense attorneys is that defendant could have "argued that the terms of his consent were unclear, or that he was misled by the form he signed, or that the effect of his signature had somehow been misrepresented to him."
Body Wires Require an Ex Parte Order or Exigent Circumstances
Before the police may listen to a conversation through an informant equipped with a body wire, they must get an Ex Parte Order pursuant to ORS 133.726. There are two exceptions: (1) If it's a drug or prostitution investigation or (2) if there are circumstances of such exigency that it would be unreasonable to get an order. This case was a theft investigation where the police did not get an order and there were no "exigent circumstances" in the constitutional sense. The court finds that exigency in ORS 133.726(7)(b) means the same thing that it does under Article I, Section 9 and the 4th Amendment: circumstances that require swift action to prevent danger, damage, escape or destruction of evidence. Here, the police merely wanted to proceed as soon as possible to stop undesirable activity. There was no immediate threat. The error was not harmless because the informant's wire recording was the primary corroboration of the informant's testimony. Thus, suppression is required by ORS 41.910(1). State v Miskell
