Oregon Supreme Ct - June 18, 2015

by: Breinhard • June 19, 2015 • no comments

Latest revision as of 07:32, June 20, 2015

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).

@@ Line 5: / Line 5: @@
 '''Miranda Violations, Consent to Search and Attenuation'''
-In this case, police failed to Mirandize a handcuffed suspect and then questioned him about potential contraband in a vehicle. The defendant denied any wrongdoing, and told officers they could search if they wanted to. The Court focuses on the volunteered aspect of the defendant’s statement, finding that any violations of Article I section 9 or section 12 were too attenuated to allow suppression, despite the unlawful interrogation. But this opinion could have been worse. The Supreme Court left relatively undisturbed the framework of State v. Vondehn, a 2010 ruling by the Oregon Supreme Court that held when police conduct a custodial interrogation without a valid waiver of Miranda rights, the violation of Article I section 12 requires derivative physical evidence obtained to be suppressed. Moreover, DeLong outlines how the Oregon Supreme Court appears to be analyzing the relationship between exploited consent and Miranda violations, now that State v. Unger has replaced the but-for analysis of State v. Hall.
+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.
-A few details of the facts in DeLong: Mr. Delong was driving in Douglas County when deputies saw him and believed he wasn’t wearing a seat belt. He was stopped, and when he told officers he didn’t have identification on him, he was detained in handcuffs in the back of the police car. He had not yet been Mirandized. For the purposes of this case, you should ignore the fact that Failure to Carry and Present limits detention only as long as reasonably necessary to identify a person.  Also, like the trial court, you should ignore the fact that Mr. DeLong had his name tattooed on the front of his chest. The arresting deputy asked DeLong “if there was anything we should be concerned about” in his car. Defendant told the deputy no, and that if “we wanted to search the vehicle, we could.” Police searched the car and found methamphetamine in a fanny pack.
-As the trial attorney on this case, I asked for suppression of the meth found in Defendant’s vehicle based on unlawful extension, and, as an afterthought during the hearing itself, that the State violated his State and Federal Miranda rights when the deputy asked him if there was anything he should be concerned about in the car, and exploited that questioning to gain consent to search. The trial judge denied the motion and Defendant was convicted by a 10-2 verdict at trial.
+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.
-Ryan O’Connor handled the appeal at the Court of Appeals level, focusing most of his energy on the last-minute argument I’d made about Miranda and exploited consent. This proved to be a much better angle than an unlawful extension of the stop, as the Court of Appeals reversed the trial court, holding that when deputies questioned Defendant without the benefit of Miranda warnings, the violation of Article I section 12 caused Defendant’s consent to be exploited, as it was secured during a custodial interrogation.
+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.
-When the Oregon Supreme Court granted review, however, I was concerned that not only would DeLong’s conviction be upheld, but the holding of Vondehn regarding the suppression of derivative physical evidence would be reversed. Justice Linde wrote a compelling concurrence in Vondehn, arguing that it was unclear under what circumstances “when evidence obtained after a Miranda violation properly can be said to derive from that violation.” However, the analysis in DeLong instead focuses on Defendant’s “invitation” to allow the police to search his vehicle.
+[http://www.publications.ojd.state.or.us/docs/S062176.pdf State v DeLong], 357 Or 365 (2015).
+{{wl-publish: 2015-06-19 00:45:26 -0700 | breinhard:Brook Reinhard  }}
-Much like in State v. Unger, in DeLong the Court focused 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 viewes 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 signaled in DeLong that it will continue to look at the totality of the circumstances in determining exploitation analysis, chiding the dissents in this case for their “talismanic significance” of the fact that Defendant was in custody and not Mirandized when he was questioned. This drew the ire of Justice Walters, who began her dissent by remarking that “This case begins with a conceded violation of the Oregon Constitution and once again, ends without legal consequence.” Walters also pointed 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, one of the most troubling aspects of Walters’ dissent is her contention that the Oregon Supreme Court isn’t even following its own rules it announced in State v. Unger, and only reaches the result in Delong because the Miranda violation was “not egregious.” Justice Baldwin also wrote his own dissent, faulting the court for determining that Defendant “volunteered” consent to search when he was simply responding to questioning initiated by the officer.
-{{wl-publish: 2015-06-19 00:45:26 -0700 | Abassos:Alex  Bassos  }}

Namespaces

Variants

Search

Views

Actions

Library Collections

COVID-19

Diversity Resources

Additional Resources

OCDLA Legislative

Webinars & Podcasts

Expert Rooms

Legal Collections

Motions

Local Collections

Legal Links

Disclaimer

Tools

Oregon Supreme Ct - June 18, 2015

Latest revision as of 07:32, June 20, 2015