State v. Love-Faust

                                      734

 Submitted December 22, 2020, affirmed March 10; on appellant’s petition for
 reconsideration filed April 5, reconsideration allowed by opinion May 26, 2021
                     See 

, ___ P3d ___ (2021)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    MICHAEL LOVE-FAUST,
                     aka Michael Love Faust,
                     aka Michael Faust-Love,
                     aka Faust Michael Love,
                       Defendant-Appellant.
                   Douglas County Circuit Court
                     19CR19907, 18CR59898;
                    A171278 (Control), A171279
                                  

    In these consolidated criminal cases, defendant appeals from a judgment
convicting him of unlawful possession of methamphetamine, ORS 475.894,
and from a judgment revoking his probation on an earlier first-degree failure
to appear conviction, ORS 162.205. Defendant argues that the trial court erred
in denying his motion to suppress because, in his view, he was in compelling
circumstances that required Miranda warnings when his probation officer (PO)
confronted him on the street with evidence that he had violated his probation and
then requested consent to search his person. Defendant further contends that,
even though Miranda warnings were eventually given, he nonetheless did not
validly waive his right against self-incrimination. Held: The trial court did not
err in denying defendant’s motion to suppress. Under the totality of the circumstances, defendant was not in compelling circumstances when his PO approached
him on the street, asked him about suspected probation violations, and requested
consent to search.
    Affirmed.



   Ann Marie Simmons, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
   Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
Cite as 

 (2021)   735

  POWERS, J.
  Affirmed.
736                                        State v. Love-Faust

         POWERS, J.
        In these consolidated criminal cases, defendant
appeals from a judgment convicting him of unlawful possession of methamphetamine, ORS 475.894, and from a judgment revoking his probation on an earlier first-degree failure to appear conviction, ORS 162.205. Defendant argues
that the trial court erred in denying his motion to suppress
because, in his view, he was placed in compelling circumstances that required Miranda warnings at the outset of the
encounter. Defendant further contends that, even though
Miranda warnings were eventually given, he nonetheless
did not validly waive his right against self-incrimination.
For the reasons explained below, we affirm.
          We review the trial court’s denial of a defendant’s
motion to suppress for legal error and are bound by the
court’s findings of historical fact if there is any constitutionally sufficient evidence in the record to support them. State
v. Maciel-Figueroa, 

, 

 (2017);
State v. Phillips, 

, 

, rev den,

 (2020). We set out the facts consistently with the
trial court’s explicit and implicit findings and its decision
denying the motion to suppress. State v. Shaff, 

, 

 (2007).
         The relevant facts are not in dispute. In 2018,
defendant pleaded guilty to first-degree failure to appear
and was placed on 24 months of probation. Among the conditions of defendant’s probation were requirements that he
(1) complete a substance-abuse treatment program; (2) not
use or possess controlled substances; (3) not frequent places
where controlled substances are used and sold; (4) not associate with people who use or possess controlled substances;
and (5) consent to a search of his person upon the request of
his parole and probation officer (PO) if his PO had reasonable grounds to believe that evidence of a probation violation
would be found.
        In March 2019, defendant missed an appointment
with Woods, his PO. Later that morning, Woods learned that
defendant had also missed a meeting with his substance-abuse treatment counselor. Therefore, Woods and another
PO, McManus, decided to look for defendant; they also
Cite as 

 (2021)                            737

requested two additional POs to accompany them to help
search for defendant. They all were wearing PO uniforms,
which were described as flak jackets over polo shirts with
visible handcuffs and sidearms. Woods used defendant’s
GPS monitoring bracelet to pinpoint his general location
and, after approximately 15 minutes of searching, Woods
sent a voice message to defendant’s GPS monitoring bracelet, asking defendant to contact Woods immediately.
         Eventually, the officers found defendant as he was
coming out of a house in Roseburg. Woods approached defendant on the street and began asking him why he had missed
their meeting and why he had missed treatment that morning. Woods also asked defendant questions about the house
that defendant had just come from and about who was in the
house. Initially, only McManus was with Woods when Woods
approached defendant, but the two other POs joined the
group eventually. McManus and one of the POs who joined
stood approximately eight to 10 feet away from Woods and
defendant, while the other PO stood approximately five feet
from them. While Woods was talking to defendant, one of
the POs contacted the Douglas Interagency Narcotics Team
and learned that the house that defendant had been in was
a “known drug house.” The PO relayed that information to
Woods. After further questioning, defendant gave Woods
the name of an individual who had been inside the house
with him. Woods recognized the name of the individual as
someone who was a “known drug user” with a “long history
of supervision.” Woods pulled up the individual’s booking
photo, and defendant confirmed it was the same person.
         At that point, Woods “explained the situation to
[defendant],” including what brought him to talk with defendant. Woods shared with defendant the information about
the house that he had received from the other POs, as well
as Woods’s own history with the individual who had been
inside the house. Believing that defendant had violated his
supervision conditions, Woods asked defendant for consent
to search his person. Defendant consented to a search, and
Woods found a syringe in defendant’s left pants pocket and
a “Marlboro cigarette pack with a baggie inside of it.” Woods
observed that “the plunger on the syringe was pulled back”
and suspected that it contained a controlled substance. At
738                                                     State v. Love-Faust

that point, Woods stopped the search, read defendant his
Miranda rights, and handcuffed him. Once defendant was
handcuffed, Woods finished his search of defendant’s person and contacted Roseburg police to report a suspected new
crime. Woods then asked defendant for consent to search his
jacket, and defendant agreed and told Woods that he would
find another syringe and a spoon with residue in the jacket.
        Defendant was charged with one count of unlawful
possession of methamphetamine and one count of unlawful possession of heroin. Before trial, defendant moved to
suppress all evidence obtained as a result of the seizure
and search, arguing that the warrantless search was presumptively unreasonable, that Woods interrogated him
in compelling circumstances without providing Miranda
warnings, and that the late Miranda warnings did not cure
the prior illegality. At the evidentiary hearing, defendant
also argued that the baggie inside the cigarette pack, which
tested positive for heroin, was inside a closed container and
should be suppressed under Article I, section 9, of the Oregon
Constitution. In response, the state contended that defendant was never questioned under compelling circumstances
and that defendant voluntarily consented to a search of his
person.
         The trial court denied defendant’s motion to suppress as to the syringes and the statements made by defendant, but granted suppression as to the baggie in the cigarette pack.1 Ruling from the bench, the court determined
that there were reasonable grounds for PO Woods “to contact [d]efendant and to ask for consent to search his person.”
The court also concluded that there was no indication that
“there was interrogation occurring or, specifically, custodial
interrogation or, frankly, anything requiring [defendant] to
admit to the commission of crimes prior to the discovery of
a loaded syringe.” Finally, the court found that there was no
delay in Woods providing Miranda warnings: Defendant’s
consent to search came “prior to the discovery” of the loaded
    1
      The trial court agreed with defendant’s argument that the baggie was in a
closed container and that the opening of the closed container violated Article I,
section 9. As a result of that ruling, the state dismissed the unlawful possession
of heroin charge. The trial court’s ruling with respect to the baggie is not at issue
in this appeal.
Cite as 

 (2021)                             739

syringe and it was the discovery of the loaded syringe that
elevated defendant’s “behavior to the level of criminal activity, not just probation violations.” Defendant then waived
his right to a jury trial, and the court found him guilty of
unlawful possession of methamphetamine after a trial to
the court.
         On appeal, defendant renews his argument that
he was in compelling circumstances and that the belated
Miranda “warnings were not effective for defendant to validly waive the right against self-incrimination.” Specifically,
defendant asserts that Woods “confronted him about evidence that he had violated probation and used that evidence as leverage to request consent to search defendant for
evidence of drug use and possession.” Further, defendant
acknowledges that Woods did not tell him that he was not
free to leave, but asserts that a reasonable person in defendant’s position would have felt compelled to answer Woods’s
questions, because Woods had already sent defendant a message through his GPS bracelet and Woods was accompanied
by three other uniformed and armed probation officers.
         In response, the state reasserts that defendant was
never placed in compelling circumstances. Although Woods
was accompanied by three other officers, the state argues
that “the trial court expressly found” that “none of the other
officers interacted with defendant at all.” The state further argues that Woods “did not exert sufficient pressure
on defendant to render the circumstances of the encounter
compelling” and cites several cases for the proposition that
“questions that merely suggest that an officer is concerned
about possible ‘illegal activity’ do not usually create compelling circumstances.” See State v. Heise-Fay, 

, 

 (2015); State v. Stone, 

, 

 (2015). In addition, the fact that defendant
could have been arrested for violating his probation, according to the state, did not place defendant in compelling circumstances, because like the defendant in State v. Dunlap,

, 

 (2007), defendant was never
told “that he would be penalized in any way for invoking his
privilege against self-incrimination, or for refusing consent
to search.” The state further argues that, even if Woods’s
interaction with defendant violated Article I, section 12,
740                                        State v. Love-Faust

of the Oregon Constitution, suppression was not required
because the Miranda warnings sufficiently attenuated any
illegality.
         We start by addressing defendant’s argument that
he was in compelling circumstances. Article I, section 12, provides, in part, that “[n]o person shall be … compelled in any
criminal prosecution to testify against himself.” To protect a
person’s right against self-incrimination, “police officers must
provide Miranda warnings to a suspect before interrogating
that suspect if the suspect either is in full custody or in compelling circumstances.” Phillips, 

 (internal
quotation marks omitted). Compelling circumstances exist
when, viewing the totality of the circumstances, a reasonable person in the defendant’s position would feel compelled
to answer an officer’s questions. Dunlap, 

. To
determine if there were compelling circumstances, we look
to whether the questioning occurred in a “police-dominated
atmosphere.” State v. Roble-Baker, 

, 

 (2006). We examine several nonexclusive factors to make
that determination: “the location of the encounter, the length
of the encounter, the amount of force exerted on the suspect,
and the suspect’s ability to terminate the encounter.” State
v. Turnidge (S059155), 

, 

 (2016),
cert den, ___US ___, 

 (2017). Those nonexclusive
factors are not applied mechanically; rather, a court should
consider the totality of the circumstances to determine if
compelling circumstances existed. Id.
         As an initial matter, defendant does not assert that
the location of the encounter made the circumstances more
compelling. Similarly, defendant does not argue that the
length of the encounter supports a determination that the
circumstances were compelling, nor did the trial court make
any findings as to how long the encounter lasted. Thus, we
consider those factors neutral.
        In arguing that the circumstances in this case
were compelling, defendant principally relies on the number
of probation officers present, Woods’s use of evidence that
defendant violated probation “as leverage to request consent
to search” defendant’s person, and his inability to terminate
the encounter.
Cite as 

 (2021)                              741

         Considering the factors under the totality of the
circumstances, we conclude that defendant was not in compelling circumstances when Woods approached defendant
on the street and asked him about suspected probation
violations. First, although there were three other officers
besides Woods present during the encounter, the lack of
contact between the officers and defendant weigh against
defendant’s argument that he was in compelling circumstances. See State v. Bush, 

, 

(2006) (noting that the circumstances were not sufficiently
compelling where there “were three officers on the scene,
but the statements at issue were made during a one-on-one
exchange” between the defendant and one officer, and the
record was “bereft of any evidence” that the atmosphere was
oppressive or coercive). In this case, the three other officers
stood several feet away from defendant, and the trial court’s
unchallenged finding was that there was “no indication that
a single one of those other Probation Officers said anything
or questioned [defendant] in any way.”
         Second, the manner in which Woods confronted
defendant on the street with evidence of potential probation
violations did not give rise to compelling circumstances.
Before addressing why, we pause to acknowledge that “the
circumstances surrounding a probation officer’s request or
demand to search are different than in the police/citizen
context, where the citizen has no obligation to submit to a
warrantless search.” State v. Davis, 

,

, rev den, 

 (1995). Although a probationer may refuse to submit to a search under Article I, section 9, that refusal may “violate the terms of the probation
and could provide grounds for revocation of the probation.”
Id. at 473. Given that predicament, “the environment surrounding the probation search may be sufficiently coercive
so as to preclude the probationer from raising an objection.”
Id. at 475. Accordingly, we generally assess whether confronting a probationer with evidence of probation violations
creates compelling circumstances in the same way we would
assess a police officer confronting a citizen with evidence
of criminal activity. See Phillips, 

 (“It is
settled that circumstances do not become compelling simply because a suspect knows that officers have information
742                                       State v. Love-Faust

that he or she may have committed a crime, or because officers suggest that possibility.”). Ultimately, “what matters is
not whether evidence of guilt was apparent to the suspect;
rather, it is whether the officers used that evidence in a coercive manner.” Shaff, 

.
         Here, the record does not reflect that Woods’s questioning constituted a coercive use of probation-violation
evidence. Woods did not communicate that there would be
consequences to defendant’s probation status if he invoked
his constitutional privilege against self-incrimination. See
Dunlap, 

 (questioning of the defendant in
PO’s office where another PO stood at the door about potential criminal activity that would have also been a violation
of the defendant’s probation, and later questioning at the
defendant’s home, did not create compelling circumstances
where “nothing in the record indicate[d] that the police
told defendant that he would be penalized in terms of his
probation status for invoking his constitutional privilege
against self-incrimination”). In addition, as the trial court
determined, “there was nothing coercive about [Woods’s]
language” and nothing “coercive about his demeanor.” Even
though Woods believed that defendant had violated some of
the terms of his probation and Woods believed that he had
reasonable grounds to arrest defendant at the outset of their
encounter, there is no indication that Woods used that information against defendant. He did not raise his voice, engage
in a show of force, threaten, or pressure defendant to answer
his questions. Cf. Heise-Fay, 

 (concluding
that once the officer confronted the defendant “with evidence that she had committed a crime, [the officer’s] statement that he had no intention of taking her into custody if
she was honest and cooperative would have indicated to a
reasonable person that it was within [the officer’s] discretion
to arrest her and that he was strongly considering doing so,
unless she was honest and cooperative” (emphasis omitted)).
        Further, although confronting defendant with information that the house that he came from was a known drug
house and that the person who he was with was a known
drug user may have suggested to defendant that Woods was
also concerned about potential drug activity, relaying such
concerns alone—and more to the point, under the totality
Cite as 

 (2021)                               743

of the circumstances presented in this case—do not create
compelling circumstances. See Stone, 

(summarizing cases and explaining that compelling circumstances have been created where officers communicated “that they believed each defendant had committed a
crime, that they had probable cause to arrest, and that they
intended to make an arrest or were strongly weighing the
possibility of making an arrest”); Heise-Fay, 

 (summarizing cases where compelling circumstances
did not exist “when an officer had asked open-ended questions during an investigation that were neither coercive nor
based on an assumption of the defendant’s guilt”). Therefore,
the probation-related questions leading up to asking defendant for consent to search his person did not give rise to
compelling circumstances.
         Similarly, we reject defendant’s contention that he
was in compelling circumstances because he could not terminate the encounter. As an initial matter, it is not clear from
the record that defendant subjectively believed that he could
not terminate the encounter. The trial court did not make
an explicit finding on that issue and this is not a situation in
which we would assume that the trial court implicitly made
such a finding. See Pereida-Alba v. Coursey, 

,

 (2015) (explaining that, although a reviewing
court will presume a trial court resolved a factual dispute
consistently with its ultimate conclusion, the presumption
has its limits; that is, “[i]f an implicit factual finding is not
necessary to a trial court’s ultimate conclusion or is not supported by the record, then the presumption does not apply”).
In any event, even if defendant subjectively believed that he
could not terminate the encounter, consistent with the reasons described above with respect to the probation-related
questions leading up to the request for consent, we reject the
argument that defendant’s inability to terminate the encounter created compelling circumstances under the totality of
the circumstances presented by this case.
         To be sure, we recognize that each of the circumstances highlighted by defendant’s arguments taken
individually—or when taken together as the analytical
framework requires—describe a potentially unsettling
situation, especially considering that there were multiple
744                                                  State v. Love-Faust

POs, who were armed and wearing flak jackets. The constitutional test for compelling circumstances, however,
focuses on whether the officers have created “the sort of
police-dominated atmosphere that Miranda warnings were
intended to counteract.” Roble-Baker, 

. That
was not the case here. As explained above, we conclude that,
under the totality of the circumstances, defendant was not
in compelling circumstances for constitutional purposes and
therefore Miranda warnings were not required by Article I,
section 12, when Woods questioned defendant. Given that
conclusion, we necessarily reject defendant’s argument
that his post-Miranda statements and evidence must also
be suppressed.2 See Dunlap, 

 (so stating).
Accordingly, the trial court did not err in denying defendant’s motion to suppress.
           Affirmed.




  2
      Given our disposition we need not reach the state’s attenuation argument.