Oregon Supreme Ct - June 18, 2015
by: Breinhard • June 19, 2015 • no comments
Miranda Violations, Consent to Search and Attenuation
Consent to search that occurs during constitutionally unlawful police questioning can be attenuated from the underlying illegality. Here, police questioned a handcuffed suspect about alleged contraband in his vehicle without Mirandizing him. The defendant denied any wrongdoing and told officers they could search the car if they wanted to. The Court focuses on the volunteered aspect of the defendant’s statement, finding that any violation of Article I section 9 or section 12 was too attenuated to allow suppression, despite the unlawful interrogation.
The Court leaves relatively undisturbed the framework of State v. Vondehn and outlines how one should analyze the relationship between consent and Miranda violations, now that State v. Unger has replaced the but-for analysis of State v. Hall. Much like in Unger, the Court focuses on three factors to determine whether voluntary consent was attenuated from a prior illegality: 1) The illegal conduct that comprised the stop or search, 2) The character of the consent and 3) The causal relationship between the two. In employing this analysis, the Court views Defendant’s statement, that police could search his vehicle if they wanted to, as problematic for two reasons. First, Defendant volunteered consent to search. Second, Defendant’s volitional act of asking if the officers wanted to search attenuated any taint of the unlawful conduct, despite the Defendant’s argument that his act could not purge the State’s unlawful conduct because he was unaware at that time that he had the right to remain silent and not incriminate himself. The Court appears to place great weight on the lack of causal connection between the violation of Defendant’s rights under Article 1 section 12 and his subsequent invitation.
A final takeaway from this opinion is to underscore the deep divide in philosophies among Oregon Supreme Court justices at the moment. The majority of the Court signals in DeLong that it will continue to look at the totality of the circumstances in determining exploitation, chiding the dissents for their “talismanic significance” of the Miranda violation. This drew the ire of Justice Walters, who begins her dissent by remarking that “This case begins with a conceded violation of the Oregon Constitution and once again, ends without legal consequence.” J. Walters also points out that the constitutional violation in DeLong – of handcuffing a defendant, placing him in the back of a police car and questioning him – was more severe than the trespassing by law enforcement that occurred in State v. Unger. Finally, J. Walters articulates why the Oregon Supreme Court isn’t even following the rules it announced in State v. Unger, and only reaches the result in Delong because the Miranda violation was “not egregious.” Justice Baldwin also dissents, faulting the court for determining that Defendant “volunteered” consent to search when he was simply responding to questioning initiated by the officer.
State v DeLong, 357 Or 365 (2015).
