State v. Yaeger

                                      626

   Argued and submitted April 22, 2019, reversed and remanded May 26; on
appellant’s petition for reconsideration filed June 10, reconsideration allowed by
                             opinion August 18, 2021
                      See 

, 

 (2021)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                JEFFREY CHRISTIAN YAEGER,
                      Defendant-Appellant.
                 Deschutes County Circuit Court
                      16CR17252; A164641
                                  

    Defendant challenges her convictions for second-degree encouraging child
sexual abuse and unlawful contact with a child. She argues that the trial court
erred by denying her motion to suppress statements and derivative evidence
that she contends were obtained as a result of post-prison supervision officers
interrogating her in compelling and custodial circumstances without giving her
Miranda warnings, and physical evidence that she contends was obtained by
searching her residence and cellphone without her voluntary consent. Defendant
also contends that applications for search warrants were based on unlawfully
obtained evidence and that evidence discovered as a result of those search
warrants should be suppressed. Held: Because post-prison supervision officers
unlawfully interrogated defendant and searched her residence without her voluntary consent, the trial court erred in not suppressing evidence obtained as a
result of those violations. The warrant to search an SD card that was discovered
independently of the constitutional violations was supported by probable cause.
   Reversed and remanded.


   A. Michael Adler, Judge.
   Kali Montague, 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.
   Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
   ARMSTRONG, P. J.
   Reversed and remanded.
Cite as 

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        ARMSTRONG, P. J.
          Defendant was convicted, on a conditional guilty
plea, of three counts of second-degree encouraging child sex
abuse, ORS 163.686, and two counts of unlawful contact with
a child, ORS 163.479. On appeal, she argues that the trial
court erred by denying her motion to suppress statements
and derivative evidence that she contends were obtained as
a result of post-prison supervision officers interrogating her
in compelling and custodial circumstances without giving
her Miranda warnings, and physical evidence that she contends was obtained by searching her residence and cellphone
without her voluntary consent. Defendant also contends
that applications for search warrants were based on unlawfully obtained evidence and that evidence discovered as a
result of those search warrants should be suppressed. As we
explain, some of defendant’s arguments are well taken and
some are not; the trial court erred in denying the motion
to suppress as to some of the evidence. We reverse and
remand.
                    I. BACKGROUND
         We review the trial court’s denial of a motion to suppress for legal error and are bound by the court’s express
factual findings if evidence in the record supports them.
State v. Taylor, 

, 

 (2019). We
state the facts accordingly.
         After serving a prison term for second-degree
online sexual corruption of a child, ORS 163.432, defendant was released, and the Board of Parole and Post-Prison
Supervision (the board) designated her a predatory sex
offender. See former ORS 181.585 (2011), renumbered as ORS
181.838 (2013), repealed by Or Laws 2015, ch 820, § 36. Her
predatory-sex-offender status required public notice, and
the notice indicated, among other things, that defendant
targets six-year-old to 17-year-old females by posing as a
modeling agent and contacting them over the internet. Her
sex-offender status made her subject to the crime of unlawful contact with a child, ORS 163.479, if she knowingly contacted a child for the purpose of arousing and satisfying her
sexual desires.
628                                           State v. Yaeger

         The board also imposed post-prison supervision
(PPS) conditions. She was prohibited from having access to
cellphones, computers, and the internet, and from having
contact with children. One condition imposed on defendant
was that she “promptly and truthfully answer all reasonable inquiries” by a county community corrections agency.
Defendant was subject to “home visits,” which meant that
defendant had to “[p]ermit the supervising officer to visit
the offender or the offender’s residence or work site, and to
conduct a walk-through” of defendant’s residence. Another
condition was that defendant “[c]onsent to the search of
person, vehicle or premises” if the “supervising officer has
reasonable grounds to believe that evidence of a violation
will be found.” Carpenter, employed by Deschutes County’s
PPS office, was the officer responsible for supervising
defendant.

         Another PPS officer, McNaughton, received kites by
one of her supervisees, Dunaway. Dunaway’s kites reported
that defendant had a flip phone and a smartphone that contained pornography and pictures of females appearing to
be underage. Dunaway also reported that defendant had
been in “contact via phone and text messages with females
[she] met” online and that defendant’s SD card containing
pornography was missing. Dunaway accused defendant of
making a “rape kit” and he hoped that the information he
was providing to McNaughton would help “get a dangerous
predator off the streets.” McNaughton passed this information on to Carpenter on July 28.

          On July 29, at about 9:15 a.m., Carpenter and
McNaughton—wearing “duty gear”—attempted to find
defendant at her Tom Tom Motel residence for a “home
visit.” Carpenter characterized a “home visit” as a visit to a
supervisee’s home under their supervision conditions, and,
if there is reasonable belief that there will be a new crime or
a PPS violation, PPS officers have the authority to tell the
supervisee that they will be conducting a search. Carpenter’s
concern, which she believed “was more than likely true,”
was that “there were victims” because defendant had been
convicted before her supervision of sexual offenses concerning minors. Carpenter did not want to rely on hearsay and
Cite as 

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wanted to give defendant an opportunity to be honest and
“tell [Carpenter herself]” about the accusations.
        While there, the PPS officers learned that defendant was at the dentist. The officers also learned that a
resident of the motel, Mitchell, had found an SD card that
contained pornography and pictures of defendant. Mitchell
turned the SD card over to a motel worker, Trenholm, who
in turn handed the card over to the motel’s manager, Steele.
The PPS officers were also told that defendant had been seen
“hiding things over in the bushes” on the motel grounds,
and they searched a “little bit” before deciding that there
was too much area to search and that they would go pick up
defendant at the dentist.
         Carpenter and McNaughton arrived at defendant’s
dentist’s office around 9:45 a.m. and approached defendant
as she was walking outside of the dentist’s office. The officers told defendant that they would be taking her to the Tom
Tom Motel to conduct a home visit. Defendant did not appear
to be under the influence of anything, but, before the officers
and defendant left, they went into the dentist’s office, and
Carpenter asked for a letter from the dentist indicating that
defendant had clearance to be admitted to jail. While driving to the motel, with defendant sitting in the back of the
car, Carpenter asked defendant if she possessed a cellphone.
She replied that she did not. Carpenter then told defendant
that she should be truthful, and defendant swore that she
did not have cellphones because she knew she was not supposed to have them.
         Neither Carpenter nor McNaughton Mirandized
defendant. It was the policy and practice of the county’s probation and post-prison supervision office that supervisees
on probation are to be given Miranda warnings when supervising officers are going to make an arrest but, if a supervisee is on post-prison supervision, supervising officers are
not required to, and do not, provide Miranda warnings.
        When defendant and the PPS officers arrived at
the Tom Tom Motel, the officers told defendant that they
believed that she had two cellphones, and, after defendant
repeatedly denied that she had cellphones, Carpenter “let
[defendant] know that [the PPS officers] would be conducting
630                                                         State v. Yaeger

a search” and that “[a]t any time [defendant] was able to tell
[the PPS officers] to stop the search.”1
         The PPS officers started searching. During the
search, the PPS officers found some things: a child-sized
homemade swimsuit under defendant’s pillow; a black book
that included a list of girls’ names, ages (13 to 16 years old),
hair color, eye color, weight, breast size, and email addresses;
and handwritten stories about sexually abusing children.
The officers also found what they believed was a “rape kit”:
100 feet of rope and an emergency blanket. They also discovered a charger and receipts for a phone.
         Initially, the officers did not find cellphones, and
Carpenter told defendant, “Look, I really want you to be
honest with me and it is part of your conditions. So be honest
with me if you have cell phones.” Carpenter told defendant
that there was a lot of property to search at the motel and
let defendant know that she would call in either the Bend
police or the sheriff’s office to help with the search, because
it “could literally take hours and hours for the two of us to
do that.” Carpenter let defendant know that she would prefer defendant to be truthful with her. Defendant “knew a
search was coming” and that she would be arrested if she
refused.
         At that point, defendant said, “[Y]es, I, I do have
a cell phone.” Defendant led the PPS officers out to some
ivy bushes on the motel grounds and grabbed a flip phone.
Carpenter asked defendant what was on the phone, and
defendant replied that there was pornography on the phone
of young girls, but “all of age.” Defendant gave the PPS officers permission to search the flip phone. The officers discovered a picture of a six-year-old girl used as the phone’s wallpaper. They then asked about another phone, a smartphone.
Defendant went and retrieved the smartphone out of the ivy
bushes. There were numerous pictures on one of the phones
that appeared to be of “very young minor females.”

    1
      This event was also described in McNaughton’s written report as Carpenter
“direct[ing defendant] to submit to a search of [her] room and the outbuilding
[she] stores some items in.” McNaughton also testified that Carpenter told defendant that “they were going to do a search, and asked for [her] consent and [she]
gave it.”
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 (2021)                            631

         The PPS officers did not place defendant under
arrest but brought her to the PPS office because they wanted
to give defendant an opportunity to elaborate on what the
officers had found and the things that defendant had admitted. At the office, Carpenter discussed with defendant the
images discovered on the phone and about the names of the
females that were written in the black book. Carpenter asked
to see the images on the phone, and defendant provided her
the passcode. Before looking at the phone, Carpenter asked
defendant if they would find any child pornography or any
minors, and defendant replied “no” and that all were of age.
Carpenter saw child pornography on defendant’s phone and
asked defendant about it. Carpenter said, after defendant
inquired if she could do community service instead of jail
time, “[W]e’ll talk about your options, but for right now we
need to know who have you been contacting, what have you
been doing? I need you to be honest with me.” Defendant
admitted to viewing a “Sex Kittens” website, which contains child pornography; having Facebook and GoFundMe
accounts; and that she had set up a fake modeling agency
and been contacting minors in that capacity.
         Defendant also told Carpenter and McNaughton
that the SD card was missing without being asked about
it. The PPS officers asked her about the SD card—what
it looked like and where she thought that she had lost it.
Defendant said that she had lost the SD card in the area
where it had been found by Mitchell.
         Carpenter arrested defendant. There was no recollection by Carpenter that defendant was advised of her
Miranda rights as she was arrested.
         Steele brought the SD card to the supervision office
later that day.
         Carpenter visited defendant a week later in jail and
asked defendant to consent to having Multnomah County
law enforcement forensically analyze her phones. Defendant
signed a form agreeing to permit that. At that point, defendant had not been Mirandized. Local law enforcement, however, did not hear back from Multnomah County law enforcement regarding anything that they may have discovered on
the phones.
632                                           State v. Yaeger

         Carpenter provided Detective Murphy, assigned by
the Bend Police Department to criminally investigate defendant, with evidence obtained against defendant. About three
weeks after Carpenter had arrested defendant, Murphy
questioned defendant in jail, providing Miranda warnings
before doing so. Murphy showed defendant the SD card provided to him by Carpenter and asked defendant if it was
hers. She responded that she was not sure if it was hers but
acknowledged that it resembled her SD card. Defendant said
that she had hidden her SD card in a “secret spot” and that
somebody had stolen it from the place that she had hidden
it. She did not consent to having the SD card searched. The
detective asked defendant why she would remove the SD
card, because doing so compromises a phone’s capabilities.
Defendant responded that she just decided to do it and that
she knew many others who did the same thing. Defendant
refused to continue with Murphy’s questioning.
         Murphy applied for a search warrant to search
the SD card that had been turned over to Carpenter and
the personal papers and notebooks that were discovered in
defendant’s motel room on July 29. In his affidavit for the
search warrant application, Murphy recited much of what
had occurred on July 29, as told to him by Carpenter. The
search warrant was granted. Murphy thereafter analyzed
the SD card, in which he found “images and videos of suspected child porn” and “images [of] young girls of various
ages, from prepubescent to teenagers.” The images found on
the SD card were the basis for the second-degree encouraging child sexual abuse charges. The paperwork included
girls’ names, birthdates, email addresses, and phone numbers. Based on that information, Murphy requested and
received a second search warrant for defendant’s Gmail
and Instagram accounts. Two other search warrants were
issued, both based on what was discovered on the SD card.
Defendant was ultimately indicted with multiple counts of
second-degree encouraging child sexual abuse and unlawful contact with a child.
         Defendant filed a motion to suppress evidence.
Defendant argued in the motion that the search of defendant’s room and the seizure of items discovered in it, as well
as the search of defendant’s cellphone, were obtained without
Cite as 

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defendant’s voluntary consent, in violation of Article I,
section 9, of the Oregon Constitution and the Fourth
Amendment to the United States Constitution. Defendant also
argued in the written motion that she involuntarily made
statements incriminating herself because she was in compelling circumstances or in custody during the July 29 encounter
with Carpenter and McNaughton. Consequently, in her view,
her rights against self-incrimination under Article I, section
12, of the Oregon Constitution and the Fifth Amendment to
the United States Constitution were violated when the PPS
officers failed to Mirandize her. Defendant also argued that
facts in the affidavit for the initial search warrant were discovered unlawfully, and without them, there was not sufficient evidence to support probable cause to issue the search
warrant for the SD card and other evidence.
         A hearing on the suppression motion was held, and
Carpenter, McNaughton, and Murphy testified to the facts
described above. At the conclusion of the hearing, defendant
argued below that she had not consented to a search. Further,
defendant emphasized, relying on State v. Heise-Fay, 

, 

 (2015), that she was under compelling
circumstances when the PPS officers exerted pressure on
her to tell them the truth. Moreover, she contended that the
pressure was even greater when the officers threatened to
bring in local law enforcement. In her view, Miranda warnings should have been given at the dental office, at the Tom
Tom Motel, and at the PPS office. When the court pointed
out that defendant was on PPS, defendant responded that
the parties were litigating a criminal offense, not a PPS violation, and that constitutional protections therefore apply.
Defendant argued that there was no case law that carves
out constitutional protections for persons subject to PPS,
and that she had constitutional protections guarding her
privacy interests when the PPS officers directed defendant
to disclose the location of the cellphones. Defendant also
argued that the probable cause for the search warrant of the
SD card depended mainly on the unlawfully obtained statements and evidence from July 29. Additionally, defendant
asserted that Murphy’s interrogation was based on tainted
evidence and that the things defendant had told him should
be excluded.
634                                               State v. Yaeger

         The state responded that defendant was someone who was on post-prison supervision, a convicted sex
offender, and designated a predatory sex offender, which
gave, under Oregon law and United States Supreme Court
case law, the PPS officers authority for home visits and executing searches. In the state’s view, the encounter on July 29
was a matter of cordial discussion, permitted by the terms
of defendant’s PPS conditions. Further, the state argued
that defendant, as a person on post-prison supervision, had
limited constitutional rights. And, in any event, the state
asserted that at no time did defendant say that she did not
want to talk or cooperate with the search.
         The trial court ruled as follows:
       “But the home visit, the home visit and subsequent
   search conducted by the Parole and Probation officers
   McNaughton and Carpenter was authorized. The Defendant
   was on post-prison supervision and parole officers, Parole
   and Probation Officers McNaughton and Carpenter had
   reasonable grounds to believe that, based on information
   that they had received, that the Defendant had violated the
   conditions of [her] post-prison supervision, and went to the
   Defendant’s home. In this case it was the Tom-Tom motel,
   but it was essentially [her] home at the time, where [she]
   was staying, and contacted [her]. And quite frankly, I find
   that the, the statements made by [defendant] were voluntary and the, the search that was conducted was pursuant
   to [her] consent. And I really don’t find there was really any
   evidence to the contrary in this hearing.
      “…
      “There was, then there were search warrants that
   were obtained later. And the Defense argument was
   really, essentially, that the search warrants were invalid
   because the statements made by the Defendant were not,
   were not voluntary and were, were unlawfully obtained.
   And because I’m finding that the statements were lawfully
   obtained and were voluntary and were, were pursuant to
   valid consent, the motion to suppress the searches through
   the later search warrants, that, those, the motion to suppress addressing those search warrants is denied as well.
      “Another issue that was raised, and it’s really sort of the
   same issue but a different, a different aspect of the same
Cite as 

 (2021)                                635

   issue. The Defense argued that the Defendant should have
   been advised of [her] Miranda rights. But quite frankly
   the law doesn’t support that. The Defendant was on post-prison supervision as a, as a sex offender, and the statute
   governing that does not require Miranda rights for Parole
   and Probation officers interviewing the person they’re
   supervising after obtaining information that gives them
   reasonable grounds to believe that the violation, that [she]
   had violated the terms of [her] post-prison supervision.
   They didn’t need, they didn’t need to advise [her] of [her]
   Miranda rights. They admitted that they did not and I find
   that they did not have to.”

Defendant entered a conditional guilty plea, and she timely
appealed.
                        II. ANALYSIS
         Before we embark on our discussion of the focus of
the parties’ arguments concerning Article I, section 9, and
Article I, section 12, we first address the trial court’s ruling
that Miranda warnings were not required because a statute
concerning PPS conditions for sex offenders made it unnecessary to provide Miranda warnings to defendant. The court
also referenced, and agreed with, the policy of the county’s
PPS office that its officers were not required to advise persons on PPS of their Miranda rights.
         On appeal, the state does not defend that ruling as
a basis for denying defendant’s suppression motion by either
pointing to any statute that excuses advising persons subject to PPS of their Miranda rights or otherwise providing
a basis for what appears to be a per se policy that Miranda
is not required for people on PPS. It is correct that the
state does not undertake to defend the ruling on that basis.
Constitutional protections apply to people on post-prison
supervision. We have plainly said that, “[e]xcept as limited
by [a person’s] conditions of parole, defendant had the same
rights upon parole as any other citizen.” State v. Brown, 

, 

 (1992); State v. Houston, 

, 

 (1991) (noting that, for statements made to the defendant’s parole officer, under “the
Oregon Constitution, [Miranda] warnings are required
when a defendant is in full custody or another setting that
636                                                         State v. Yaeger

judges would and officers should recognize to be compelling”
(internal quotation marks omitted)).

         It is also important to note that defendant’s PPS
conditions did not require defendant to submit to the demands
of PPS officers. Cf. State v. Tennant, 

, 

 (2021) (“[T]he state does not contend—…, properly so—that defendant was required to consent to a search
by virtue of his probationary status.”); State v. Davis, 

, 

, rev den, 

 (1995)
(general conditions of probation do not constitute a “waiver
of the probationer’s Article I, section 9, rights, the probationer is entitled to refuse to allow the search, and must be
given a reasonable opportunity to do so”). Rather, the conditions provide that the failure to comply with those conditions results in a PPS violation, which can result in a sanction or incarceration. Further, we fail to find a distinction in
Oregon law between the rights afforded to people on probation and people on PPS. A person on probation or PPS who
invokes a constitutional right may subject him- or herself to
a PPS violation, but that does not obviate any constitutional
right that that person may have. To the extent that the trial
court agreed with the county’s PPS office policy and practices that were based on a contrary understanding, the court
erred.

A.    Article I, section 12

         The trial court also ruled that defendant’s statements were voluntary, and we turn to defendant’s argument that her statements should have been suppressed
under Article I, section 12, viz., defendant’s statements were
unlawfully obtained because she was in compelling circumstances when the officers interrogated her, and the PPS officers failed to advise her of her Miranda rights.2
         Under Article I, section 12, of the Oregon Constitution, “No person shall be … compelled in any criminal
     2
       We need not reach defendant’s argument that, under State v. Gaither, 

, 

 (2004), rev den, 

 (2005), her rights against
self-incrimination were violated because she was forced to choose between violating the conditions of her supervision and giving up her right to not incriminate
herself.
Cite as 

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prosecution to testify against himself.”3 That constitutional
right against self-incrimination is protected if law enforcement officers “provide Miranda warnings to a suspect before
interrogating that suspect if the suspect is in full custody
or compelling circumstances.” State v. Phillips, 

, 

, rev den, 

 (2020) (internal
quotation marks removed). That is, Miranda warnings are
required if (1) the suspect is in full custody or compelling
circumstances and (2) there is an interrogation. It is the
state’s burden to prove that a defendant’s statements were
made voluntarily. State v. Roble-Baker, 

, 

 (2006).
         A person is in compelling circumstances when—
considering the totality of circumstances—the circumstances indicate that a reasonable person would believe that
they are being compelled to answer an officer’s questions.
State v. Dunlap, 

, 

 (2007). Such
a circumstance occurs in a police-dominated atmosphere.
Roble-Baker, 

 (explaining that the “overarching inquiry is whether the officers created the sort of
police-dominated atmosphere that Miranda warnings were
intended to counteract”). And, the nonexclusive facts used
to make that determination include “(1) the location of the
encounter; (2) the length of the encounter; (3) the amount
of pressure exerted on the defendant, including whether
an officer has used evidence of guilt in a coercive manner;
and (4) the defendant’s ability to terminate the encounter.”
Heise-Fay, 

 (citing Roble-Baker, 

). “We also examine the number of officers and police
cars at the scene, the demeanor of the investigating officer,
and the use of physical force or confinement during questioning.” 

         For purposes of Article I, section 12, “interrogation”
means “police statements or conduct ‘likely to elicit some
type of incriminating response.’ ” State v. Shevyakov, 

, 

 (2021) (quoting State v. Schmidtke,

, 

 (2018)). “More particularly,
    3
      Defendant also asserts that her statements were unlawfully obtained under
the Fifth Amendment to the United State Constitution. Because we conclude that
defendant’s right against self-incrimination was violated under Article I, section
12, we do not reach that argument.
638                                              State v. Yaeger

because Article I, section 12, concerns the right not to be
compelled to testify, interrogation means statements or
conduct likely to elicit (1) an incriminating response that is
(2) testimonial; and (3) ‘that the prosecution may later seek
to introduce at trial.’ ” 

 (quoting State v. Scott, 

, 

 (2007)).
          Defendant asserts that the PPS officers violated
her rights under Article I, section 12, and the Fifth
Amendment because the un-Mirandized statements that
she made throughout the day on July 29 were made involuntarily. That is because she was in compelling circumstances
throughout the encounter, and the questions the PPS officers posed to her were likely to elicit some type of incriminating response. The state, acknowledging that it conceded
below that defendant was in a custodial setting on July 29,
responds that the PPS officers did not interrogate defendant
because the officers were only investigating a PPS violation,
and the questions that they asked defendant were about a
PPS violation, not a crime. In the state’s view, none of the
questions about defendant’s cellphones constituted interrogation because interrogation consists of questioning or conduct that law enforcement should know is reasonably likely
to elicit an incriminating response.
         Because the state concedes that defendant was
either in compelling circumstances or in a custodial setting
for the July 29 encounter—and we agree with and accept
the concession—the Article I, section 12, arguments reduce
to whether the PPS officers interrogated defendant. We conclude that they did.
         Carpenter and McNaughton had been alerted that
defendant might have been committing crimes against children. Although it is true that the PPS officers were fulfilling
their obligation to investigate a post-prison supervision violation, Carpenter testified that the impetus for going to the
motel and then retrieving defendant at the dentist’s office
was that Carpenter believed that it was “more likely than
not” that there were “victims.” It is true that the PPS officers
did not have direct evidence from Dunaway that defendant
had images of child pornography on her phone (informants
had related that they viewed pornography and images of
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 (2021)                                                   639

underage girls on defendant’s phone, but not child pornography). However, child pornography was not the PPS officers’ sole concern, and, even if we were to accept the state’s
position that the PPS officers had no reason to believe that
they would discover child pornography on defendant’s cellphones—a proposition of which we are skeptical given the
state’s arguments concerning probable cause for the search
warrants—the PPS officers had reason to believe that other
crimes would be discovered on defendant’s phone. That is,
given defendant’s criminal history (convicted of second-degree online corruption of a child), her designation as a
predatory sex offender who targets children online, and the
information Carpenter and McNaughton had learned from
Dunaway, viz., that defendant was assembling a “rape kit,”
was texting and messaging females she had met on online
dating sites, and that there were images of underage females
on the defendant’s phone, it was reasonable for Carpenter
and McNaughton to suspect that defendant had at least
committed the crime for which she was charged, unlawful
contact of a minor, and that evidence of those crimes would
be discovered on defendant’s cellphones. The record does
not support the state’s contention that the PPS officers were
merely investigating a PPS violation.4
         Likewise, we reject the state’s argument that defendant’s answers to the PPS officers’ questions were neither
inculpatory nor exculpatory, and thus not incriminating
responses, because “at most,” defendant’s admission of cellphone possession or disclosing the location of a cellphone
would only subject her to being found in violation of a PPS
violation, which is not a crime. As we have explained, the

     4
       Two other arguments by the state are unavailing. The state argues that
there is nothing in the record that suggests that the PPS officers were trying to
elicit an incriminating response. Evidence of an officer’s subjective intent, however, is not required. Rhode Island v. Innis, 

, 

,

 (1980) (stating that “Miranda safeguards were designed to vest
a suspect in custody with an added measure of protection against coercive police
practices, without regard to objective proof of the underlying intent of the police”).
The state also contends that the questions about cellphones were analogous to
routine booking questions, and therefore not subject to Miranda. See State v.
Moeller, 

, 

 (2009) (holding that questions during
a detainee’s medical condition while in police custody served an administrative
purpose and did not constitute interrogation). We reject without discussion that
the PPS officers’ questions served an administrative purpose.
640                                                       State v. Yaeger

PPS officers were not merely conducting a PPS-violation
investigation—they were also conducting a criminal investigation. A “yes” response to the officers’ questions would
have revealed whether or not defendant was in possession of
an item that was used for a crime that the officers believed
that defendant had committed. And that is something that
a prosecutor could “later … seek to introduce at trial.”
Shevyakov, 

. It is evident that admitting
to possession of the means to commit a crime is inculpatory. Likewise, a denial to the officers’ questions about cellphone possession could also be incriminating insofar as a
denial that later proves to be untrue can be used to show
consciousness of guilt. See State v. Simmons, 

, 

, rev den, 

 (2016) (reasoning that “a rational juror could infer that defendant’s
statements to investigators acknowledged his knowledge
of the circumstances of the [crime], and that his refusal to
divulge those circumstances manifested a consciousness of
guilt”).
         Consequently, the PPS officers, in the car and at the
motel, interrogated defendant because the questions that
they asked were likely to elicit an incriminating response.
Because those questions were asked while in compelling circumstances, the PPS officers were required to advise defendant of her Miranda rights. And, because the officers did not
do that, defendant’s right against self-incrimination under
Article I, section 12, was violated, and the trial court should
have suppressed the statements that she made during the
car ride and at the motel.5
        Defendant also argues that statements she made at
the PPS office, like those that were made in the car ride
and at the motel, were the product of an unlawful interrogation. The PPS officers, defendant asserts, confronted
defendant with the evidence that they had gathered at the
motel and questioned her about possessing child pornography and the details of her contacts with children. The state
    5
      Defendant argues that there was a Miranda violation when Carpenter
obtained defendant’s consent to have her cellphone forensically analyzed, which
never occurred. Defendant does not identify any statement that defendant made
during that encounter that was incriminating, and we reject her argument that
there was a Miranda violation.
Cite as 

 (2021)                            641

responds that the record entitled the trial court to conclude
that statements defendant made were not made in response
to any questions or interrogation from the PPS officers.
That is because Carpenter testified that the PPS officers
only brought defendant to their office to give defendant an
“opportunity” to tell the officers more about the plan and
the evidence that they had collected. If defendant’s statements were not elicited by questions or interrogation, then,
the state argues, Miranda warnings were not required. In
particular, the state points to the fact that Carpenter testified that defendant “voluntarily” gave the officers the information that the SD card was missing and that she had lost
it in the area where Mitchell found it.

          We disagree that the record supports the inference that the PPS officers did not interrogate defendant
at the PPS office. The officers asked questions designed to
elicit incriminating evidence. The PPS officers “talked” to
defendant about what would be on the cellphones; “asked”
defendant specifically whether the phones would contain
child pornography; and “ask[ed]” defendant about the child
pornography that was on the phones. Further, the officers
brought defendant to the office so that defendant could
explain the statements and evidence that had been discovered earlier. In those circumstances, that can only be construed as confronting defendant with evidence that they
already had against her. That is interrogation. Schmidtke,

 (“Confronting a detainee with the evidence against him or her can constitute interrogation.”).
And, that defendant “voluntarily” told the officers about the
SD card and where it was missing does not mean that that
statement was voluntarily given for the purpose of Article I,
section 12, when she was in compelling circumstances and
in the midst of questioning by the officers as they confronted
her with the physical evidence of the cellphones that they
had discovered.

         In sum, the trial court erred in concluding that
defendant’s statements were voluntary and that therefore
Miranda warnings were not required. There were Miranda
violations, and defendant’s statements should have been
suppressed.
642                                           State v. Yaeger

B.    Derivative Evidence from the Miranda Violations
         Defendant also contends that the discovery of the
cellphones in the area behind the Tom Tom Motel and her
consent to search them were derivative of the Miranda violations and should be suppressed. Defendant relies on the
rule, articulated in State v. Jarnagin, 

, 

 (2012), that, “because the failure to give Miranda
warnings, when required, is itself a constitutional violation,
the remedy for that violation extends not only to a defendant’s unwarned responses to an officer’s questions but also
to the physical and testimonial evidence that is the product of that violation.” See also State v. Vondehn, 

, 

 (2010) (evidence obtained as the product
of a Miranda violation applies to physical evidence). Under
Jarnagin, as applied here, we look at the nature of the
Miranda violation; the amount of time between the violation
and the discovery of the cellphones and defendant’s consent
to search them; whether the suspect remained in compelling circumstances between the time of the violation and the
discovery of the cellphones and the consent to search them;
subsequent events that may have dissipated the taint of the
earlier violation; and the use that the PPS officers made of
the unwarned statements. 

.
          In defendant’s view, the discovery of the cellphones
and her consent to search are “intrinsically intertwined”
with the unwarned statements that she made. That is, they
were close in time, she remained in compelling circumstances, and there were no intervening circumstances that
could have dissipated the taint of the violation. The state
answers that the nature of the violation was not flagrant,
see, e.g., State v. Koch, 

, 

(2014) (officers flagrantly violated Miranda by continuing
to question a defendant after the defendant unequivocally
invoked his right to counsel), and that there was never a
Miranda violation to begin with.
         We agree with defendant that the discovery of the
cellphones and the consent to search them were the product
of the aforementioned Miranda violation. Immediately after
defendant relented to the PPS officers’ questions and admitted that she did possess a cellphone, she led the officer to
Cite as 

 (2021)                            643

the location of the flip phone. Likewise, the discovery of the
smartphone occurred immediately after the officers asked
her about it. In both cases, the discoveries were related to
the unlawful interrogation regarding the phones’ existence.
Additionally, the discoveries of the phones were near contemporaneous with the Miranda violation, defendant remained
in compelling circumstances, and there was no intervening
circumstance. Those factors outweigh whatever degree of
flagrancy the violation may have lacked (we need not decide
whether the violations were flagrant).
C. Belated Miranda Warnings
         As to defendant’s statements about the SD card to
Murphy while she was in jail—viz., the SD card resembled
the one she had hidden in a secret spot—which were preceded by Miranda and occurred about three weeks after the
July 29 encounter with the PPS officers, defendant makes
two arguments: (1) in the vein of the derivate-evidence
analysis explained in Jarnagin, statements she made to
Murphy were the product of the earlier Miranda violations
and were therefore unlawfully obtained derivative evidence;
and (2) under Vondehn, 

 (holding that
belated Miranda warning may not “accurately and effectively” inform a suspect of his or her rights under certain
circumstances), Murphy’s interrogation was a continuation
of the earlier and unlawful interrogations, and the Miranda
warnings were not effective.
         As for defendant’s Vondehn argument, it is not preserved. Although the state does not contend in its briefing
that defendant failed to preserve her argument, we nevertheless have an “independent obligation to determine whether
an argument advanced on appeal was preserved at trial.”
Vokoun v. City of Lake Oswego, 

, 

 (2003), rev den, 

 (2004) (citing State v. Wyatt,

, 

 (2000)). We have reviewed the
record, and we have not found that defendant argued to the
trial court that, despite Murphy’s Miranda warning, defendant was not accurately and effectively apprised of her right
against self-incrimination.
        Additionally, applying the factors set out in Vondehn
is the proper analytical framework for assessing whether
644                                                           State v. Yaeger

defendant’s statements were voluntary after being Mirandized,
and we therefore do not consider defendant’s alternative
argument that her statements were the tainted product of
the Miranda violations. See Jarnagin, 

 (applying a
derivative evidence analysis for statements made under circumstances that were neither compelling nor custodial and
after a Miranda violation and applying an analysis using the
factors adopted from Missouri v. Seibert, 

, 

, 

 (2004), for statements that were made
after Miranda was given). Consequently, we conclude that
the trial court did not err in admitting defendant’s statements to Murphy about the SD card.
D. Article I, Section 9; Search of Defendant’s Residence
         Defendant argues that the trial court erred in not
suppressing the physical evidence discovered in defendant’s
residence. In defendant’s view, the state failed to meet its
burden to establish that she voluntarily consented to the
search. The state responds by pointing out that the PPS
officers asked for, and received, defendant’s consent and
that the officers gave defendant a reasonable opportunity to
refuse the search.
         A search without a warrant is per se unreasonable
and presumptively unlawful under Article I, section 9, unless
the search is permissible under an established and limited
exception to the warrant requirement. State v. Bonilla, 

, 

 (2015). Consent is such an exception to the warrant requirement. 

 (noting that “consent
relinquishes a person’s privacy interest in property so that
there is no unlawful intrusion under Article I, section 9”).
When the state advances “consent” as an exception to the
constitutional warrant requirement, it must establish—
that is, it is the state’s burden to prove—by a preponderance of the evidence that, among other things, the person
subjected to the warrantless search voluntarily consented
to the search, rather than simply acquiesced to authority.6
     6
       “The state has the burden of proof and persuasion to establish, by a preponderance of the evidence, four things: (1) that a person with the authority to do so,
(2) voluntarily consented to the search, rather than simply acquiesced to authority. Then, the state must establish (3) the scope of consent given, and finally,
(4) that the search conducted did not exceed the scope of the consent given.”
Tennant, 

 (footnote omitted). The first, third, and fourth things
the state needs to establish are not at issue in this case.
Cite as 

 (2021)                             645

Tennant, 

. It also is important to note that
a supervision requirement under which the supervisee must
consent to a search when a supervising officer has reasonable grounds to believe that a violation has occurred “is not
self-executing.” Dunlap, 

. Rather, the supervisee has the choice of refusing consent and putting herself
at risk of being subject to a violation for not consenting. If,
however, a supervisee has refused consent, the supervising
officer is not justified by the mere fact of the PPS condition
in searching the supervisee’s home. 

         With respect to the state’s burden, the state “first
must establish that defendant’s ‘consent’ was, in fact, consent, and ‘not mere acquiescence to a thinly veiled demand.’ ”
Tennant, 

 (quoting State v. Brock, 

, 

 (2012)). Acquiescence—which
is not consent—occurs when an individual is either not provided “a reasonable opportunity to choose to consent” or
when circumstances or words make clear that “a search will
occur regardless of whether consent is given.” State v. Berg,

, 

 (2008), adh’d to as modified on recons, 

, 

, rev den, 

 (2009). The state’s argument in this case posits that
consent was asked for and voluntarily given and that there
was acquiescence by defendant because the officers gave
defendant a reasonable opportunity to choose to consent
when the officers indicated to defendant that she could stop
the search at any time. For defendant’s part, she argues that
any consent asserted by the state was mere acquiescence
because the PPS officers’ conduct and words made clear that
a search was inevitable.

         To answer that question—“whether a particular
police-citizen interaction amounts to consent, versus mere
acquiescence”—we look to the totality of the circumstances
that were present during the encounter. Tennant, 

. We have identified certain circumstances as relevant to that analysis. Particularly important is an officer’s
language concerning consent, although it is not dispositive. And, we have indicated that an officer’s language that
is framed as a question regarding a defendant’s consent
“may nevertheless be ‘confrontational in the context of the
646                                            State v. Yaeger

interaction.’ ” 

 (quoting State v. Leiby, 

, 

 (2018)).

          Also, when we assess consent versus mere acquiescence, we consider the situation from the perspective of the
person being asked for consent, not the police officer seeking
consent. Tennant, 

 (citing State v. Briggs,

, 

, rev den, 

(2013) (“When those words do not provide the listener with a
reasonable opportunity to choose to consent, or when those
words leave the listener with the impression that a search
is inevitable, absent strong countervailing factors, we have
consistently found acquiescence rather than consent.”). “The
impression that a search is inevitable can come from what is
said, the manner in which it is said, the situational context
of the encounter, as well as what is left unsaid.” Tennant,

. Further, “[a]lthough we have never held it
to be explicitly required, in assessing whether the state has
met that burden” of showing that a defendant was given a
reasonable opportunity to refuse a request to consent to a
search, “we have given considerable weight to whether the
officer ‘correctly informed defendant that he could refuse to
consent to a search, while noting that such a refusal could
subject him to arrest for a probation violation.’ ” 

 (quoting
State v. Hiner, 

, 

 (2010)).

         For the following reasons, we conclude that the state
did not meet its burden of establishing that defendant voluntarily consented to a search of her motel room. Rather than
waiting for defendant at her motel room or returning at a time
when the officers knew she would return, the officers picked
her up at the dentist office in place of defendant’s friend and,
on the way to the motel, confronted her with their belief that
she was in possession of a cellphone and told her that they
would be conducting a home visit (defendant’s supervision
conditions permitted PPS officers to visit her home and walk
through common areas or defendant’s rooms). That situation
set the stage for when the officers “directed” defendant to submit to a search or “told” her that they were going to search
her motel room. From defendant’s viewpoint, the officers’ subsequent request for consent was merely a veil for the officers’
demand to search. Any “consent” given by defendant was
Cite as 

 (2021)                             647

mere acquiescence because, from her perspective, the PPS
officers had indicated that a search was inevitable.
          Moreover, defendant was not afforded a reasonable
opportunity to refuse the search. See Tennant, 

 (“[I]n the context of a request for consent by a probationer, we have held that, to meet its burden, the state
must show that the probationer was given ‘a reasonable
opportunity’ to refuse.” (Quoting Davis, 

.)). Although defendant was informed that she could stop
the PPS officers’ search “at any time,” that opportunity to
“refuse consent” was merely an opportunity to stop a search
that would already be underway. Stopping something that
is already happening is not the same as providing permission for something to happen. That is, obtaining consent for
a search contemplates that consent is given before a search
begins, and if the search has begun, withdrawing consent
is not equivalent to having provided it in the first instance.
Hiner, on which the state relies, is not to the contrary.
         There, the deputy correctly informed the defendant
that he could refuse to consent to a search, while noting that
such a refusal could subject him to arrest for a probation
violation. 

. But the deputy told the defendant that the defendant could refuse the search and clearly
set out the alternatives of the probation condition: consent to
a search based on reasonable suspicion or violate parole. 

That is different from what happened here.
E.   Search Warrants
         Defendant contends that the first search warrant—
to obtain evidence from the SD card and defendant’s personal papers discovered in her motel room—relied on evidence from the encounter on July 29 and that, without that
evidence, there was not probable cause to search the contents of the SD card and defendant’s personal paperwork.
The state responds that, if information in the affidavits is
deemed by this court to have been unlawfully obtained,
defendant is only entitled to a remand for further litigation
about the search warrant’s validity. Alternatively, the state
asserts that the information that remains in the affidavit,
independent of the unlawfully obtained evidence, was sufficient to support the issuance of the warrant.
648                                           State v. Yaeger

         To begin with, the state is incorrect that the validity of the search warrants is an issue to be decided by the
trial court on remand. In State v. Gardner, 

, 

, rev den, 

 (2014), we said
that, “when an application includes constitutionally tainted
information, the proper remedy is for the reviewing court to
excise all the tainted information from the application and
determine whether the remaining information in the affidavit is sufficient to establish probable cause.” We do that
here—excise the tainted evidence from Murphy’s affidavit
and assess the remaining information to assess whether
probable cause existed. Consequently, all of the evidence
obtained on July 29 by the PPS officers is excised. However,
we do consider evidence that was not obtained unlawfully,
viz., the SD card, statements made to Murphy in jail, and
additional evidence that Murphy included in the application.
         “Probable cause exists when the facts set out in
the warrant application would lead a reasonable person to
believe that seizeable things will probably be found in the
location to be searched.” 

 (citing State v. Henderson, 

, 

 (2006)). “Our task is ‘to determine,
as a matter of law, whether [the affidavit] permits a conclusion by a neutral and detached magistrate that the items
specified in the warrant will probably be found in a specified
place to be searched.’ ” State v. Gustafson, 

, 

 (2019), rev den, 

, cert den, ___
US ___, 

 (2020) (quoting State v. Chase, 

, 

 (2008)). And, in performing that
task, we “may rely on facts asserted in the affidavit as well
as reasonable inferences to be drawn from them.” State v.
Daniels, 

, 

, rev den, 

 (2010). “Our standard of probability requires less than
a certainty, but more than a mere possibility that the items
will be found in one of the specified places.” Gustafson, 

 (internal quotation marks omitted). “While
adhering to the probable cause requirement, we resolve
doubtful or marginal cases in favor of the preference for warrants.” Henderson, 

.
         The state concedes that, if the July 29 search of
defendant’s room was unlawful, then the warrant authorizing further examination of defendant’s personal paperwork
Cite as 

 (2021)                           649

found in the room is invalid. We agree and accept the state’s
concession on that point. The trial court erred in admitting
evidence obtained as a result of searching defendant’s personal papers under the authority of the warrant.
         As to the SD card belonging to defendant, Murphy
recounted the events that occurred on July 29 as told to
him by Carpenter: the PPS officers had conducted a home
visit at the Tom Tom Motel; Carpenter seized a “rape kit,”
the hand-sewn bikini; defendant’s paperwork with personal
information, including emails and phone numbers, concerning underage girls; two cellphones were discovered; and one
of the cellphones was a smartphone that was missing its
SD card, which defendant had lost near the back of the Tom
Tom Motel. All of that is tainted information that we excise
from the warrant application.
         What remains is that Murphy recounted that a
motel worker found the SD card on the motel grounds—near
the back—and that the worker and a motel resident discovered pictures of pornography when it was inserted into a
computer. Murphy also described how he had visited defendant in jail and asked her about the SD card that she had
told Carpenter that she had lost. Murphy stated that defendant told him that she had hidden the card in a secret location and had discovered it was missing but could not explain
why she had removed the SD card from the telephone and
hidden it. Murphy also stated in the affidavit that he had
shown the SD card to defendant, asking her if she recognized it. She replied that it resembled the SD card that she
had hidden but could not say for sure if it was hers. Murphy
also asked defendant about the personal information written in her personal paperwork, and defendant replied that
most of what she wrote down was fictional but that some of
the information was from real girls whom she had contacted
on the phone and via texts.
        Murphy also recounted that he personally called
Trenholm and Steele to ask them about the SD card.
Trenholm described where he had found the card—near
the back of the motel—and that he had viewed pornography on the phone but, without his glasses, he could not see
enough detail to know if the pornography included children.
650                                           State v. Yaeger

Murphy added that Trenholm had said that Mitchell had
denied that the SD card was his and that he turned the card
over to Steele. Steele told Murphy that she turned the card
over to Carpenter but had not viewed its contents.
         Additionally, Murphy included in his warrant application defendant’s predatory-sex-offender bulletin, which
identified defendant as someone who was known to target
females between the ages of six and 17 years old by using
the internet. Based on his training and experience, Murphy
recounted that “predatory sex offenders often collect, trade,
and view child and adult pornography”; cellphones and SD
cards store photos; and that persons who “seek to collect,
distribute or trade sexually explicit images of minors most
often use the internet to do so.” Attached to the August 31
affidavit was another affidavit from several months earlier
in which Murphy had stated that a phone was found on
the Tom Tom Motel grounds that contained a picture of a
naked boy lying on a bed or couch who appeared to be about
10 years old, and that defendant, who had previously denied
possessing a cellphone, ultimately admitted that the discovered phone was hers.
          We can conclude that the affidavit, even without
any information that was unlawfully obtained by the PPS
officers on July 29, would lead a reasonable person to believe
that the SD card probably belonged to defendant and that
evidence of child pornography or unlawful contact with a
minor would be discovered on the SD card. It does not require
anything other than reasonable inferences to conclude
that it was more than a mere possibility that the SD card
belonged to defendant given that defendant admitted that
she had hidden a similar-looking SD card on the grounds
of the motel where she lived. That the card belonged to her
was even more likely given that there was a prior instance
of someone finding defendant’s phone on the motel grounds.
        Moreover, it does not require speculation to conclude that evidence of child pornography or unlawful contact
with a child would be discovered on the SD card. Because
of defendant’s criminal history, her designation as a predatory sexual predator known to target underage females,
her admission to Murphy that she had contacted underage
Cite as 

 (2021)                                651

girls, and the discovery of a cellphone belonging to defendant containing a naked underage boy, it is reasonable to
infer that evidence of sexual crimes would be found on the
SD card. Murphy’s training and experience bolstered such
an inference. See Daniels, 

 (explaining
that “the training and experience information (paperfolds
contain drugs) supplies the major premise on which the conclusion (defendant possessed drugs) depends, and that major
premise must be followed by a minor premise (defendant
possessed a paperfold) that is supported by objective facts
derived from other sources”).
        Consequently, we conclude that, even without the
tainted evidence, the remaining evidence listed in the warrant application is sufficient for us to conclude that there
was more than a mere possibility that evidence of child pornography or unlawful contact with a child would be discovered on the SD card. That is, there was enough evidence to
support probable cause. However, because the subsequent
search warrant application to search defendant’s Gmail and
Instagram accounts depended on the discovery of information contained in the seized personal papers of defendant,
that search warrant lacked probable cause. Because the two
other search warrants depended on information discovered
from the SD card, those warrants were valid.
                     III.   CONCLUSION
          Defendant was unlawfully interrogated by the PPS
officers in violation of Article I, section 12, and, consequently,
her statements in response were not voluntarily given. The
discovery of defendant’s cellphones was a product of that
Miranda violation. Further, defendant did not voluntarily
consent to the search of her motel room. The trial court
erred in concluding otherwise. There was enough evidence
in the application for the first search warrant to establish
probable cause to search defendant’s SD card but not her
personal papers. The application for the second search warrant lacked probable cause. The third and fourth warrants
were supported by probable cause.
         Reversed and remanded.