314
Argued and submitted July 16, reversed and remanded October 21, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERICK JOAQUIN,
Defendant-Appellant.
Lane County Circuit Court
16CR70691; A167411
476 P3d 1263
Defendant appeals from a judgment of conviction for murder constituting
domestic violence, assigning error to the trial court’s denial of his motion to
suppress evidence that he contends resulted from police interrogation that violated his right to counsel under Article I, section 12, of the Oregon Constitution.
Defendant argues that he unequivocally requested counsel but that, even if his
request was equivocal, the detective’s subsequent questions went beyond statements designed to clarify whether defendant intended to invoke his right to counsel. He further contends that his consent to a search of his apartment, phone, and
person were the product of that illegality, such that all of the later-discovered
evidence must be suppressed. Held: Defendant’s request for counsel during his
initial police interview required, at the very least, additional clarifying questions
from the detectives before the interrogation continued. The inculpatory statements and physical evidence defendant sought to suppress—with the notable
exception of physical evidence discovered during execution of a search warrant—
derived from the illegality and should have been suppressed.
Reversed and remanded.
Jay A. McAlpin, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the
cause for appellant. Also on the briefs 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 Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
Reversed and remanded.
Cite as 307 Or App 314 (2020) 315
KAMINS, J.
Defendant appeals from a judgment of conviction
for murder constituting domestic violence, assigning error
to the trial court’s denial of his motion to suppress evidence
that he contends resulted from police interrogation that violated his right to counsel under Article I, section 12, of the
Oregon Constitution. For the reasons explained below, we
agree with defendant that his request for counsel during
his initial police interview required, at the very least, additional clarifying questions from the detectives before the
interrogation continued. We further agree with defendant
that the inculpatory statements and physical evidence he
sought to suppress—with the notable exception of physical
evidence discovered during execution of a search warrant—
was derived from the illegality and should have been suppressed. We therefore reverse and remand for a new trial.
I. BACKGROUND
The pertinent facts are undisputed for purposes
of this appeal. Defendant and Yucupicio-Pizano worked as
roofers and lived on property owned by the roofing company’s general manager, Mohon. Yucupicio-Pizano lived in a
trailer, and defendant lived in a detached apartment. On
November 5, 2016, police responded to a 9-1-1 call from
Mohon in which he reported that Yucupicio-Pizano told
him that defendant had killed someone and that the floor
of defendant’s apartment was torn up; upon arrival, police
entered the apartment and found what they believed to be a
decomposing body in a blanket under a mound of dirt below
the floorboards. Defendant was arrested later that day at
his construction site by Officer Cooper, who read defendant
his Miranda rights. Defendant was then taken to the police
station, where he was placed in a holding cell for a “couple of
hours.”
Detectives Hall and Roth arrived to interview
defendant. Before the interview started, Cooper told the
detectives that, when he had arrested defendant and read
him his Miranda rights, defendant had told Cooper, “I want
to discuss with my mom so I can—I can get my own attorney.” Cooper also told the detectives that defendant had been
speaking in Spanish with a coworker at the job site and had
316 State v. Joaquin
asked the coworker to call defendant’s mom. Cooper said, “I
didn’t know what the statement was but I could tell that it
was something to do [with] an attorney. Abogado is the last
thing he said.”
Based on that information, Roth acknowledged
that “abogado” means attorney and that they “[g]otta have
him clarify” before starting the interview. Hall then woke
up defendant, who had been asleep in the holding cell. Hall
did not re-Mirandize defendant at that point. Rather, Hall
explained that he and Roth wanted to talk with defendant
upstairs, so that defendant “can explain what’s going on and
help us figure some stuff out.” Defendant and Hall then had
the following exchange:
“[DEFENDANT]: Um, is there a judge present?
“[HALL]: A judge? No, there’s no judges present. It’s
just gonna be . . .
“[DEFENDANT]: Oh.
“[HALL]: . . . me and you . . .
“[DEFENDANT]: A lawyer?
“[HALL]: A lawyer—is there one? Nope, there’s no
lawyers here.
“[DEFENDANT]: Can we wait ‘till one’s present?
“[HALL]: We can always wait ‘till one’s present if that
what you wanna do? Is that what you wanna do?
“[DEFENDANT]: Umm
“[HALL]: I wasn’t there. I know those officers explained
your rights to you before so I wanna make sure that you
do understand your rights and if you talk to me and if you
do so it’s voluntary and I’d appreciate it if [you] would, but
it’s completely up to you to talk without one or with one so
that’s—that’s your choice. I can’t make that for you. You let
me know and if you wanna talk now we’ll go talk. If you
wanna wait for a lawyer—we’ll wait for a lawyer. That’s
up—it’s your choice—your call. I know you’re just waking
up so I don’t wanna start asking you a bunch of serious
questions when you’re still groggy. So we can even start
talking and then if you wanna stop at any point you can let
me know and we can stop talking too. So, those are kinda
your options.”
Cite as 307 Or App 314 (2020) 317
At that point, defendant responded, “Oh yeah. Can
you get me out of these clothes soon?” The conversation then
shifted to how badly defendant wanted to get out of his wet
clothes and warm up, and the police provided him with a
dry shirt and pair of pants.
Defendant was eventually taken upstairs for the
interview, where he confessed to killing his girlfriend, J,
but claimed that she had attacked him. At the end of the
interview, Hall sought and received consent from defendant
to search his apartment, photograph him, take fingernail
scrapings, inspect the contents of his phone, and take DNA
swabs from him.
The following day, police obtained a search warrant for the apartment. The affidavit in support of the warrant was based on facts known to police from their initial
entry into the apartment, their discussions with Mohon and
Yucupicio-Pizano, their interview with defendant, and other
investigation of defendant and J and their relationship. That
search yielded, among other evidence, the victim’s body, a
trash bag hidden under the floor that included bloody cargo
pants, a blood-stained shirt, a rain coat, and a bent knife
blade.
Meanwhile, defendant had been held overnight and
was then interviewed the next day after police had executed the search warrant. Before the second interview, Hall
read defendant his Miranda rights. The second interview
was “more confrontational,” as Hall pressed defendant on
“facts that didn’t quite add up from his previous statement.”
During the second interview, defendant admitted that J had
not attacked him, that the story had just “come into [his]
head,” and that he had stabbed J, saw her suffering, and
then wanted to end that suffering.
Defendant was charged with one count of murder
constituting domestic violence, ORS 163.115; ORS 132.586.
Before trial, he filed two motions to suppress. Although only
the denial of the second is directly challenged on appeal, we
discuss both because the first informs our analysis of the
scope of suppression.
Defendant’s first motion challenged the warrantless search that occurred when police responded to Mohon’s
318 State v. Joaquin
9-1-1 call and entered the apartment. Defendant sought to
suppress any evidence obtained as a result of that search,
“including the observation and subsequent seizure of items
located under the floor of that residence and the seizure
of any and all derivative evidence, including any evidence
seized by a subsequently obtained search warrant and all
oral derivative evidence.”
The second motion sought to suppress “all statements made by Defendant on the grounds that they were
illegally obtain[ed] because the Defendant invoked his right
to counsel, involuntary, and on the ground that any waiver
of Miranda rights was not intelligently given, and suppressing all derivative evidence illegally obtained as fruit of the
poisonous tree.” Defendant explained that the derivative
evidence included evidence obtained from the search of his
apartment, the contents of his phone, photographs of his
person, collection of his fingernail scrapings, and his DNA.
Defendant acknowledged that the state eventually obtained
a search warrant for the apartment but stated that “the warrant is based on evidence obtained from the illegal search.”
The trial court denied both motions to suppress.
With regard to the warrantless search of the apartment, the
court ruled that Mohon’s consent to the search was sufficient
and that the emergency aid exception applied to the officers’
warrantless entry based on the report that someone had
been stabbed. The court also reasoned that, even if police
should have realized that the victim was deceased rather
than in need of emergency assistance after they entered the
apartment, the officers had enough information to obtain
a search warrant for the apartment and inevitably would
have discovered the evidence found there.
With regard to defendant’s second motion, the trial
court concluded, in relevant part, that defendant’s question—“Can we wait ’till [a lawyer’s] present?”—was an equivocal invocation of his right to counsel but that “Detective
Hall did what he is required to do, which is let [defendant]
know what his constitutional rights were and let him know
that they would, in fact, wait for an attorney if that’s what
[defendant] wanted. And then [defendant] proceeded to
continue to talk.” The trial court acknowledged that the
Cite as 307 Or App 314 (2020) 319
detectives were not neutral parties and wanted defendant
to continue talking. Nonetheless, the court concluded that
the law did not require anything more than to let defendant know his rights and “where he stands as an individual
under the laws of the United States and the State of Oregon,
and let [defendant] make his own decision, and that’s what
happened.”
Defendant proceeded to trial, where the state introduced the evidence he sought to suppress, including police
observations upon their initial entry, defendant’s statements
confessing to the murder, the contents of the bag discovered
in the apartment, and DNA evidence linking him to bloody
clothing. A jury found him guilty and he was convicted of
murder constituting domestic violence.
II. DISCUSSION
On appeal, defendant assigns error to the trial
court’s denial of his second motion to suppress, arguing
(1) that defendant unequivocally requested counsel when he
asked, “Can we wait ’till one’s present?” and that all interrogation should have ceased at that point; and (2) even if
the request was equivocal, Hall’s subsequent questions went
beyond statements designed to clarify whether defendant
intended to invoke his right to counsel. Defendant further
contends that he consented to a search of his apartment
and of his phone and provided a DNA sample and fingernail
scrapings after police had ignored his invocation of the right
to counsel and during the course of the unlawful interrogation, such that all of the later-discovered evidence must be
suppressed.
The state defends the trial court’s ruling that defendant’s request was equivocal and that Hall followed up with
appropriate clarifying questions. Alternatively, the state
argues that we should affirm, even if defendant’s right to
counsel was violated, because: (1) his consent to searches of
his apartment, phone, and person were nonetheless valid;
(2) defendant does not challenge the court’s ruling denying the first motion to suppress and does not “distinguish
what evidence he contends was discovered pursuant to the
alleged illegality”; and (3) any error in failing to suppress
320 State v. Joaquin
defendant’s statements was harmless in light of the state’s
other strong evidence of his guilt.
We begin by considering whether defendant’s right
to counsel was violated and then turn to questions concerning the consequences of that violation. We review for legal
error. State v. Roberts, 291 Or App 124, 129,
418 P3d 41 (2018)
(reviewing the invocation question for legal error); State v.
Mast,
301 Or App 809, 820,
459 P3d 938 (2020) (reviewing
whether evidence derived from the preceding Article I, section 12, violation for legal error).
A. Violation of the Right to Counsel
Article I, section 12, of the Oregon Constitution
states that “[n]o person shall … be compelled in any criminal prosecution to testify against himself.”1 The right to
counsel during custodial interrogation derives from the
right against self-incrimination. See State v. Scott, 343 Or
195, 200,
166 P3d 528 (2007). “A suspect invokes the right to
counsel by making a statement or request that a reasonable
officer would understand as an invocation.” Roberts,
291 Or
App at 131.
“Invocations of one’s Article I, section 12, rights
may take one of two forms: unequivocal or equivocal.” Id. at
132 (citing State v. Schrepfer,
288 Or App 429, 436,
406 P3d
1098 (2017)). An invocation is unequivocal when the suspect
expresses a clear intent to invoke his or her rights, typically
by a statement of “the desired action or view relating to the
right in question (won’t answer questions, don’t want to talk,
need a lawyer).” State v. Nichols,
361 Or 101, 110,
390 P3d
1001 (2017). In that circumstance, where a suspect in police
custody unequivocally invokes the right to an attorney, the
interrogation must immediately cease. State v. Boyd,
360 Or
302, 318,
380 P3d 941 (2016); Schrepfer, 288 Or App at 436
(“If the invocation is unequivocal, there is only one permissible response: interrogation must immediately cease.”).
1
Defendant also advances parallel arguments regarding the guarantee of
the right to counsel under the Sixth and Fourteenth Amendments to the United
States Constitution. Because we reverse and remand under the state constitution, and the scope of suppression would not be any greater under the federal
constitution, we confine our analysis to state constitutional questions.
Cite as 307 Or App 314 (2020) 321
An equivocal invocation, on the other hand, occurs
“when the suspect’s statement or request is subject to more
than one reasonable interpretation, one of which is that he or
she is invoking the right to counsel.” Roberts, 291 Or App at
132. “A statement that appears tenuous or equivocal in isolation may be a sufficient request for counsel when evaluated
in the context of all of the circumstances.” State v. Sanelle,
287 Or App 611, 624,
404 P3d 992 (2017), rev den,
362 Or
482 (2018) (internal quotation marks omitted). Ultimately,
the question is whether, given the circumstances, a reasonable officer “would have understood at least one plausible
meaning” of the suspect’s statement or question “to be that
[the suspect] was invoking the right to counsel.” Roberts,
291
Or App at 133 (emphasis omitted).
In the case of an equivocal invocation by a defendant, police have two choices: They can (1) stop the interrogation or (2) ask the defendant “ ‘neutral follow-up questions
intended to clarify the equivocal nature of [the] defendant’s
statement.’ ” State v. Dodge, 297 Or App 30, 41,
441 P3d 599,
rev den,
365 Or 533 (2019) (quoting State v. Hickman,
289 Or
App 602, 606-07,
410 P3d 1102 (2017)). “Any question not reasonably designed to clarify the equivocal nature of the statement is impermissible.” Roberts,
291 Or App at 133. That
means that the questions following an equivocal invocation
of the right to counsel must clarify specifically whether the
suspect had intended to invoke that right, not other rights
such as the right against compelled self-incrimination or the
right to court-appointed counsel under Article I, section 11.
Sanelle,
287 Or App at 627-28. In fact, as we observed in
Dodge, questions directed at the suspect’s understanding of
other rights can impermissibly obscure matters: “[B]y asking a suspect whether he wishes to keep talking after he
has invoked the right to counsel, officers at least deflect that
invocation and risk suggesting to the suspect either that he
does not have such a right or that the right will not be honored.”
297 Or App at 42.
In this case, the state does not dispute that defendant’s question—“Can we wait ’till [a lawyer’s] present?”—
was at least an equivocal invocation, a concession that is
well taken. To put that question in context, detectives had
322 State v. Joaquin
entered defendant’s holding cell knowing that he had made
previous statements about an attorney that they “[g]otta
have him clarify,” and defendant asked at the outset of their
conversation in the cell whether a lawyer would be present in the interview room, to which one of the detectives
responded, “A lawyer—is there one? Nope, there’s no lawyers here.” Defendant then asked, “Can we wait ’till one’s
present?” Given the context of defendant’s inquiry, the question is not whether a reasonable officer would have understood at least one plausible meaning to be that defendant
was invoking the right to counsel; it is whether that is the
only plausible meaning.
Here, though, it is not necessary to decide whether
defendant’s invocation was unequivocal, because the questions that followed did not sufficiently clarify defendant’s
intent before the interrogation continued. Assuming for
the sake of argument that defendant’s invocation was only
equivocal, Hall’s initial attempt at clarification was permissible: He said, “We can always wait ’till one’s present if
that what you wanna do? Is that what you wanna do?” But
defendant responded with uncertainty, saying “Umm.” That
required Hall to ask for further clarification if he wanted to
proceed with the interrogation.
Hall’s next statements were less straightforward
attempts to clarify whether defendant had intended to
invoke the right to counsel. He told defendant, “If you wanna
wait for a lawyer—we’ll wait for a lawyer. That’s up—it’s
your choice—your call.” But Hall also told defendant that he
would “appreciate it” if defendant would keep talking to him
and asked whether he wanted to do that—a practice that, as
we observed in Dodge, can influence a suspect’s decision and
risks suggesting that an invocation will not be honored. 297
Or App at 42.
In any event, Hall did not obtain any clarification
before detectives proceeded to interrogate defendant. Hall
said, “I know you’re just waking up so I don’t wanna start
asking you a bunch of serious questions when you’re still
groggy. So we can even start talking and then if you wanna
stop at any point you can let me know and we can stop
Cite as 307 Or App 314 (2020) 323
talking too. So, those are kinda your options.” Defendant’s
reply was ambiguous at best and wholly insufficient to clarify whether he had previously intended to invoke his right
to counsel by asking whether he could wait for a lawyer.
Defendant replied, “Oh yeah. Can you get me out of these
clothes soon?” At no point after that did detectives revisit
defendant’s invocation of the right to counsel, and they proceeded to interrogate him without ever obtaining a clear
answer to whether his earlier question had been intended to
invoke the right to counsel.
Contrary to the trial court’s ruling, police do not
satisfy their obligations in the face of an equivocal invocation simply by repeating a suspect’s rights while keeping the
suspect talking.2 Our case law holds that continued questioning must clarify whether a suspect invoked his right to
counsel, not provide an opportunity to rethink it. Dodge, 297
Or App at 42; Roberts,
291 Or App at 133; Sanelle,
287 Or
App at 627. Here, the interrogation proceeded without police
ever obtaining a clear answer to what defendant had meant
by his question, “Can we wait ’till [a lawyer’s] present?” The
detectives violated defendant’s rights under Article I, section 12, by proceeding to interrogate him without that necessary clarification.3
2
And, here, the detective did not even repeat all of the pertinent rights—such
as the right to court-appointed counsel. Given that defendant was just waking up
in a holding cell where he had been for hours, and had not been re-Mirandized,
there was additional risk that defendant did not understand that his right to have
a lawyer present included one at the state’s expense in the event that he could not
afford one. In that circumstance, the detective’s selective recitation of defendant’s
rights had the potential to confuse defendant and further undermine his invocation of the right to counsel. See Sanelle, 287 Or App at 628-29 (explaining that, “not
only was the detectives’ follow-up an instance of failing to clarify what defendant
meant—and, an instance of misdirection—the follow-up may have misled defendant into believing that he did not have a Miranda right to counsel during the
interview” (citing United States v. Botello-Rosales,
728 F3d 865, 867 (9th Cir 2013),
which held that a warning that, properly translated, informed the defendant that
the right to counsel was contingent on the approval of a request or lawyer availability, was an “affirmatively misleading advisory [that] does not satisfy Miranda’s
strictures”)).
3
There was argument below about whether the police were required to ask
a binary, “yes or no” question to clarify defendant’s intent. We have never proscribed the precise manner in which police must clarify an equivocal invocation,
and we do not do so here. But, by way of example, a follow-up question like, “Are
you asking for an attorney to be present, yes or no?” would be an effective means
of clarification.
324 State v. Joaquin
B. Scope of Suppression
The remaining question is the effect of that violation. Defendant argues, as he did below, that the violation of
his right to counsel requires suppression of all statements he
made during his first and second interviews, as well as all
derivative evidence illegally obtained as a result of the violation, including evidence obtained from the searches of his
apartment, his phone, photographs of his person, collection
of his finger nail scrapings, and his DNA. The state does not
dispute that defendant’s statements during both interviews
must be suppressed, but it contends that the physical evidence was admissible (1) because defendant voluntarily consented to the search of his phone, and to the taking of DNA
samples, photographs, and fingernail scrapings; and (2) the
evidence found inside his apartment—including the victim’s
body, defendant’s clothing, and the murder weapon—were
discovered pursuant to a valid search warrant.
For the reasons explained below, we agree with
defendant that all statements and physical evidence derived
from his consent to searches must be suppressed, because
the state failed to carry its burden to show that the evidence
was not the product of the violation. However, we agree with
the state regarding physical evidence discovered during
the execution of the search warrant—a warrant that was
supported by probable cause regardless of any statements
obtained by police during the unlawful interrogation.
1. Exclusion of evidence derived from Article I, section 12,
violations
Where a defendant’s Article I, section 12, right to
counsel has been violated, the remedy for that violation
extends not only to a defendant’s uncounseled responses
to a detective’s questions but also to the physical and testimonial evidence that is the product of that violation. See
State v. Jarnagin, 351 Or 703, 716,
277 P3d 535 (2012).
“[W]hether testimonial or physical evidence derives from a
prior [Article I, section 12] violation cannot be reduced to a
mechanical formula but will vary depending on the totality
of the circumstances.” State v. Swan,
363 Or 121, 131,
420
P3d 9 (2018). In Jarnagin, the court described some of the
relevant considerations:
Cite as
307 Or App 314 (2020) 325
“Among other things, the court has considered the nature
of the violation, the amount of time between the violation
and any later statements, whether the suspect remained
in custody before making any later statements, subsequent events that may have dissipated the taint of the earlier violation, and the use that the state has made of the
unwarned statements. …. The inquiry is a fact-intensive
one—whether, considering all the circumstances, a defendant’s later decision to speak to officers is sufficiently a
product of an earlier Miranda violation that suppression is
necessary to vindicate the defendant’s Article I, section 12,
rights.”
351 Or at 716-17.
The burden of production and persuasion is on the
state to show that any statements or physical evidence it
seeks to offer was not the product of the violation. Swan, 363
Or at 133; State v. Vondehn,
348 Or 462, 469-70,
236 P3d 691
(2010) (explaining that the Supreme Court has “long interpreted Article I, section 12, to impose no distinction between
compelled statements and physical evidence derived from
such statements or between the use of compelled statements
to obtain evidence and as testimony at trial”).
The Supreme Court’s analysis in Swan is particularly instructive. In that case, the defendant was arrested
for driving under the influence of intoxicants (DUII), and
he invoked his right to counsel. Despite that invocation, the
arresting officer proceeded to ask him 28 DUII interview
questions and then asked if he would consent to a breath test,
which he did. The defendant moved to suppress his answers
to the 28 questions and all derivative evidence, arguing that
his decision to take the breath test and the test results were
the product of the violation. The state conceded the violation
of the defendant’s right to counsel, and the issue before the
Supreme Court was “whether his decision to take the breath
test derived from the immediately preceding Article I, section 12, violation.” Id. at 130.
To determine whether the state had shown a break
in the causal chain between the violation and the breath
test results, the court looked to the factors that it had previously set forth in Jarnagin. Focusing on the second and
third factors, the court concluded that the state failed to
326 State v. Joaquin
carry its burden to show that the consent to the breath test
was not the product of the Article I, section 12, violation
because the answers obtained, which were not disclosed in
the record, could have affected the defendant’s decision to
take the breath test: “Without knowing what [the officer]
asked and what defendant answered, we have no way of
determining that defendant’s decision did not derive from the
immediately preceding violation of his Article I, section 12,
right to counsel.” Swan, 363 Or at 132. The court explained
that the defendant had remained in custody the entire time
so there was “no break in time, place, or custody between
the officer’s repeated Article I, section 12, violation and
defendant’s decision to take the breath test that might have
attenuated the effect of the violation.”
Id. It was “instead a
case in which the prior illegality and defendant’s decision to
take the breath test blended into a continuum.” Id.
2. Testimonial statements and evidence derived from
consent searches
The state’s arguments regarding the validity of
defendant’s consent to searches of his phone, photographs
of his body, fingernail scrapings, and DNA swabs fail for
reasons similar to those articulated in Swan. Here, defendant’s consent was obtained late in the first interview after
defendant had already admitted significant involvement
in the murder, including inculpatory statements related
to the phone, marks on his body, fingernail scrapings, and
DNA that could have affected his willingness to consent
to searches. There was no break in time, place, or custody
between the violation of defendant’s right to counsel and his
decision to consent. Rather, like Swan, it was a case where
the violation and the consent “blended into a continuum.”
363 Or at 132. Because the state failed to show that defendant’s consent was somehow attenuated from the violation
of his right to counsel, the physical evidence discovered from
those searches must be suppressed.
3. Physical evidence discovered pursuant to search
warrant
We turn next to whether the violation of defendant’s right to counsel requires suppression of the physical
evidence discovered when police executed a search warrant
Cite as 307 Or App 314 (2020) 327
at his apartment after the first interview. According to the
state, the trial court expressly ruled that the officers’ initial entry onto the premises, which occurred before the first
interview, “was valid pursuant to the consent of the homeowner,” and also that the evidence later found inside when
the warrant was executed—“including the victim’s body,
defendant’s clothing, and the murder weapon—would have
been inevitably discovered.” Those rulings, the state submits, have not been challenged by defendant and require us
to affirm the suppression of that physical evidence.
Defendant responds that the state is mixing and
matching the court’s rulings on two separate motions to
suppress: his motion concerning the initial unlawful entry
onto the premises and the motion raising the Article I, section 12, violation. He argues that, as for the latter, the state
never alerted the trial court to what evidence derived from
the unlawful interrogation: “[T]he entirety of the state’s
argument in response to defendant’s motion to suppress
was that defendant did not invoke the right to counsel.
The state did not alternatively argue that particular evidence derived from the unlawful interrogation was nevertheless admissible, and the trial court never considered
the issue.” According to defendant, the trial court’s conclusions about the validity of the search warrant were directed
solely at the motion regarding unlawful entry onto the
premises.
It is true that defendant filed separate motions to
suppress, but the motions were not as analytically distinct
as defendant suggests—nor were they litigated so separately. In the trial court, the state responded to defendant’s
first motion by arguing that the officers’ initial entry was
justified by the consent of the owner, Mohon, and by the
emergency aid exception. The state then argued, alternatively, that all evidence found in the house during that initial entry inevitably would have been discovered because
police “would have written a warrant to search the room
because they clearly had probable cause based on Yucupicio-Pizano’s observations and discussion with the defendant.”
(Emphasis added.) That is, in response to the first motion,
the state relied partly on the later interviews with defendant to argue that the search warrant inevitably would
328 State v. Joaquin
have issued and that everything in the apartment would
have been discovered.
In response to defendant’s second motion—and contrary to defendant’s representation on appeal—the state
also raised the issuance of the search warrant in response
to defendant’s second motion under Article I, section 12. The
state explained that a search warrant would have issued
even without statements from the interview, and it set out
pertinent parts of the affidavit supporting the warrant:
“In the unlikely event that the court concludes that the
defendant invoked his right to an attorney and his consent
was involuntary, the court should still find an adequate
basis for the search of the defendant’s residence based on
the November 6, 2016 search warrant. Even if the Court
excises the interview with defendant from the warrant, there
is more than enough evidence of the murder and reason to
believe evidence of the crime of murder would be present in
the outbuilding occupied by the defendant. In his affidavit,
Detective Jed McGuire writes:
“‘Yuc[u]picio-Pizano told Detective Vreim, who in turn
told me, that last night, November 4, 2016, he was over in
[defendant’s] outbuilding with [defendant] and a female
friend that was with [defendant] watching a movie.
Yuc[u]picio-Pizano said that he fell asleep on a small bed in
the room, but awoke to [defendant] and the female arguing.
Yuc[u]icio-Pizano said that he could not understand what
they were fighting about because he does not understand
English well. Yuc[u]picio-Pizano said that [defendant] and
the female were arguing on [defendant’s] bed when the
female got up and sat on the couch. Yuc[u]picio-Pizano
said he observed [defendant] get up from his bed, go over
to the couch, and begin to stab the female with a knife.
Yuc[u]picio-Pizano said that the female put her arms up
to defend herself and began yelling “No! No!” Yuc[u]picio-Pizano said that at some point the female fell to the ground
and [defendant] was over the top of her, continuing to stab
her. Yuc[u]picio-Pizano could see that the female’s chest
and face were covered in blood. Yuc[u]picio-Pizano said the
woman then goes motionless and he got up from the small
bed and ran out of the outbuilding, [defendant’s] residence.’
“This statement very explicitly lays out the anatomy of
the [victim’s] murder as directly witnessed by Yuc[u]picio-
Cite as 307 Or App 314 (2020) 329
Pizano. Certainly, this statement, provided to law enforcement by a named eye witness would establish probable
cause to believe that the defendant’s residence contained
evidence of the murder, including trace evidence of blood
and blood spatter, a knife or dangerous weapon used to kill
or cut [J], property and belongings of [J], the body or human
remains of [J], tools used to dispose of the human remains
of [J], and clothing worn by the defendant or [J] during the
murder. Yuc[u]picio-Pizano’s statement is credible based on
the nature of the disclosure made to law enforcement, and
Yuc[u]picio-Pizano’s demeanor during his reports to police.
“As the affidavit clearly establishes probable cause to
search the defendant’s residence for the items authorized
in the warrant after excising any purported constitutional
invalid statements by defendant, the warrant is valid and
the search was constitutionally permissible. Therefore, the
court should find that the evidence seized during the execution of the November 6, 2016 search warrant admissible
in the defendant’s forthcoming trial.”
(Emphasis and alterations added.)
Both motions were heard at the same pretrial
hearing, and the parties and trial court appreciated that
some of the questions between the two motions overlapped
in terms of suppression of defendant’s statements and the
physical evidence discovered during various searches. When
the trial court asked the parties about the issuance of the
search warrant, it did so with an eye toward striking not
only what officers saw during the warrantless entry but also
the uncounseled statements defendant made to detectives
during the interview:
“THE COURT: Taking out what the officers saw in the
apartment and taking out the statement that [defendant]
made to the detectives, do you think there is sufficient evidence for a search warrant affidavit?
“[Prosecutor]: Absolutely. All the Court has to do—and
I’ve highlighted it to some degree that the lion’s share of it
is to look at the statement provided by Detective McGuire
with regard to what Mr. Yucupicio-Pizano told law enforcement officers with regard to what he witnessed, which is
far more substantial than what the Court has been told in
this hearing ….
330 State v. Joaquin
“…
“So I believe that those statements alone in that provide
adequate probable cause for the police to believe that the
body of the victim would be in that residence and would be
found underneath those floorboards as was predicted and
talked about to some degree by Mohon in that affidavit as
well.”
The trial court took both motions under advisement
and later issued oral rulings denying them. The court’s oral
rulings divided the issues generally along the lines of evidence obtained from searches (primarily the first motion to
suppress) and statements obtained from defendant (primarily the second motion), but the court’s reasoning regarding
probable cause for the warrant was equally applicable to
the second motion. The court’s reasoning turned on what
police knew from their own observations and the witness
statements, not defendant’s interview statements. The court
ruled:
“Even if [it is true that police should have left], if at that
point they should have realized that she was deceased,
everything up to that point, including the witness statements
of seeing her stabbed at the location; the testimony that the
floorboards had been in disarray from the owner, who knew
exactly what they would normally look like. And then I think
that by itself would be enough for a warrant, I think. You can
add on that what they observed themselves up to the point
where they noticed that there was something buried under
there. Even if [defense counsel] is correct and they should
have known at that point that there was no hope of survival, which I don’t agree with, but even if then, they had
enough to get a warrant. …
“So I think, in fact, that this is a case with inevitable
discovery.”
(Emphasis added.)
Given that procedural history, we reject defendant’s
primary contention, which is that the state is now raising
arguments on appeal that were neither presented to nor
decided by the trial court. If anything, the state’s arguments
regarding the independent validity of the search warrant
Cite as 307 Or App 314 (2020) 331
were better developed in the trial court than they are in the
briefing on appeal.
Turning to the merits of those arguments, we
agree with the state that the evidence discovered by executing the search warrant did not derive from the violation of
defendant’s rights under Article I, section 12. As the court
explained in Swan, the question whether evidence derives
from an Article I, section 12, violation cannot be reduced to
a mechanical formula and varies depending on the totality
of the circumstances. 363 Or at 131. And, in this case, the
record leaves no doubt that a search warrant would have
issued for defendant’s apartment regardless of anything
that happened when defendant was interrogated.
Before detectives arrested and interrogated defendant, Yucupicio-Pizano had told police that he witnessed
defendant stabbing J in defendant’s apartment; Yucupicio-Pizano had told them that J was underneath the floor; police
had entered the apartment and seen plywood askew, saw
blood and what appeared to be a fresh mound of loose soil,
had moved soil and located a fleece blanket in the dirt, and
had smelled an odor of decomposition and fecal matter after
moving the blanket. That information was in the search
warrant, and, as the state argued below, was sufficient to
establish probable cause to believe that evidence of a murder would be found in the apartment. Because there was
probable cause for the issuance of the warrant regardless of
the Article I, section 12, violation, the trial court correctly
declined to suppress evidence found while executing the
search warrant at the apartment. We therefore do not disturb that aspect of the court’s suppression ruling.
C. Harmlessness
Last, we briefly address the question of prejudice.
The state suggests that, as long as evidence discovered at
the apartment was admissible, any error in failing to suppress other evidence—including defendant’s confession to
the murder—was somehow harmless. We reject that argument without extended discussion. Defendant confessed to
the murder following the violation of his right to counsel,
gave shifting stories on whether he acted in self-defense, and
332 State v. Joaquin
made other inculpatory statements that affected his ability
to defend himself. The state’s harmlessness argument also
fails to account for any of the inculpatory physical evidence
that derived from the consent searches, which included
DNA evidence linking defendant to the murder. The trial
court’s error requires us to reverse defendant’s conviction
and remand for a new trial.
Reversed and remanded.
