State v. Center

                                       813

   Submitted September 19, 2019, resubmitted en banc September 21, 2020;
                reversed and remanded September 29, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   DAVID LEROY CENTER, JR.,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       17CR54262; A166777
                                    

     Defendant appeals a judgment convicting him of attempting to elude a police
officer, ORS 811.540(1)(b)(B). Defendant contends that the trial court erred in
denying his motions to suppress (1) his confession to being the driver of the pursued vehicle, and (2) an eyewitness’s identification of defendant as the driver.
The court did not reach the merits of the identification issue, as any error was
harmless under the circumstances. Regarding the confession, defendant argues
that, under ORS 136.425(1), the state did not meet its burden of proving that the
confession was voluntary, because it was the product of a police officer’s explicit
threat of jail and the loss of defendant’s car. The state concedes that the officer’s
threats prompted defendant’s confession, but argues that the threats were not
unlawfully coercive, because the officer had lawful authority to carry out the
threatened actions. Held: Under ORS 136.425(1), the voluntariness of a confession
depends on whether a person’s confession is the unlawful product of threats, not
whether the threatened actions themselves are lawful or unlawful. Accordingly,
the trial court erred by denying defendant’s motion to suppress his confession. To
the extent that the trial court erred in denying defendant’s motion to suppress
eyewitness-identification evidence, any such error was harmless under the specific circumstances of defendant’s trial, but defendant was given leave to raise the
issue again upon any retrial.
    Reversed and remanded.



    En Banc
    Stephen K. Bushong, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
814                                             State v. Center

  Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,
Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and
Kamins, Judges.
  DeHOOG, J.
  Reversed and remanded.
  DeHoog, J., filed the opinion of the court in which
Armstrong, Ortega, Tookey, Shorr, James, Aoyagi, Powers,
and Kamins, JJ., joined.
   Mooney, J., dissented and filed an opinion in which Egan,
C. J., and DeVore, J., joined.
  Lagesen, J., took no part in this decision.
Cite as 

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           DeHOOG, J.
         Defendant appeals a judgment convicting him of
attempting to elude a police officer, ORS 811.540(1)(b)(B).
In three assignments of error, defendant contends that the
trial court erred in denying his motions to suppress (1) his
confession to being the driver of the pursued vehicle; (2) an
eyewitness’s out-of-court identification of defendant as the
driver of the pursued vehicle; and (3) the same witness’s
in-court identification of defendant. We do not address the
merits of defendant’s second and third assignments of error
relating to defendant’s identification as the driver.1 However,
we conclude that the trial court erred in denying defendant’s
motion to suppress his confession and that the error was
harmful. Accordingly, we reverse and remand.
         The material facts, most of which are taken from
the suppression hearing, are undisputed for purposes of
appeal. On the evening of July 27, 2017, Trooper Schmidt
of the Oregon State Police (OSP) was on duty and conducting traffic patrol in the area of 82nd Avenue in Portland.
At approximately 10:50 p.m., as Schmidt was concluding an
unrelated traffic stop, he saw a white Honda hatchback drive
by at a “visually high rate.” Schmidt immediately followed
the Honda and, after unsuccessfully attempting to stop
it, he found the car in a parking lot located behind a business and adjoining an apartment complex. Two occupants
were seated in the Honda, but neither was in the driver’s
seat. Riviere, who lived in one of the nearby apartment
units, approached Schmidt and gave him a description of
another person who, according to Riviere, had walked away
from the car and approached his apartment. Schmidt later
showed Riviere a DMV photograph of defendant, who was
     1
       The trial court concluded that the evidence of defendant’s identity was the
product of “highly suggestive procedures used by the police.” See State v. Lawson/
James, 

, 

 (2012) (establishing methodology for
deciding admissibility of eyewitness-identification testimony under OEC 602,
OEC 701, and OEC 403). However, reasoning that perhaps an appropriate jury
instruction would alleviate any unfair prejudice, the court concluded that the
evidence was not “so unreliable that it must be excluded.” In light of defendant’s
subsequent jury waiver and the particular circumstances of the ensuing bench
trial, we conclude that any error in the admission of that evidence was harmless;
we therefore do not reach the merits of defendant’s second and third assignments
of error. On any retrial, however, defendant is free to renew his argument under
Lawson/James.
816                                                          State v. Center

the registered owner of the Honda, and Riviere told him
that he was 80 to 85 percent certain that the person he had
seen was the person in the photo. Based on Riviere’s identification and defendant’s status as the registered owner of the
Honda, Schmidt believed that he had “enough information
for an arrest.”
          The following afternoon, defendant went to the OSP
office in Milwaukie in an effort to retrieve the Honda, which
had been towed there as evidence of a crime. At Schmidt’s
request, defendant agreed to a tape-recorded interview.2
After being advised of his Miranda rights, defendant denied
that he had driven the Honda the night before, when the
suspected attempt to elude had taken place, and said that
he had been at a party from about 10:00 p.m. until 3:30 a.m.
Schmidt, who did not believe defendant’s denial, recontacted
Riviere, who had been sent newer photographs taken of
defendant upon his arrival at the OSP office. Based on the
new photographs, Riviere told Schmidt that he now was 100
percent certain that defendant had been the driver.3 At that
point, Schmidt believed that he had probable cause to arrest
defendant for reckless driving, reckless endangerment, and
attempting to elude a police officer.
         On the recording, defendant can be heard telling
Schmidt that he was at a party the night before, when a
“buddy” had asked to borrow his car. Defendant expresses
difficulty remembering the details of the party, including
whom he was with or who else was there. Defendant tells
Schmidt that he did not leave the party until early morning,
when he walked home, in part because his buddy “Junior”
never returned with his car. Defendant says that he learned
only third hand that his car had been impounded the night
before. Schmidt, having by this time in the interview recontacted Riviere, tells defendant that he does not believe him,
in part because he has an eyewitness who has positively
identified defendant as the driver based on the photographs
    2
      Schmidt first testified regarding his investigation, including his interview
of defendant, after which the state played the recorded interview.
    3
      Because they are relevant only to defendant’s challenges to Riviere’s
in-court and out-of-court statements identifying defendant, which we do not
address, we omit any further descriptions of Riviere’s account of events or the
manner in which Schmidt obtained Riviere’s eyewitness statement.
Cite as 

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taken earlier that afternoon. Initially undeterred, defendant
maintains his denial at that point.
         At the suppression hearing, Schmidt testified that,
despite his certainty that defendant was lying, he had not
threatened defendant to get him to tell the truth—that he
had not “h[e]ld a gun to his head.” Schmidt did, however, give
defendant an ultimatum based on whether “he wanted to
tell [Schmidt] what really happened,” meaning, in Schmidt’s
view, that defendant had been the driver of the Honda. The
recorded interview includes the following exchange:
      “[SCHMIDT:] So this can go a couple of different ways,
   okay? I have somebody that puts you at that scene when
   that event happened last night, okay?
      “[DEFENDANT:] Did they?
      “[SCHMIDT:] Yeah. Okay. Like we just discussed, it’s
   a very populated area, okay? So I have somebody that put
   you in that car last night, okay?
      “[DEFENDANT:] Mm-hmm.
       “[SCHMIDT:] So we can either level—you can level
   with me and just kinda tell me what happened, if you
   freaked out, got nervous, got scared about going back to
   jail or prison or something like that—
      “[DEFENDANT:]       Yeah.
       “[SCHMIDT:] —give me a plausible explanation, and
   I can work with you, okay? If we still keep going down this
   road of ‘this didn’t happen, this wasn’t me, it was somebody
   that I don’t know’—
      “[DEFENDANT:] Yeah.
      “[SCHMIDT:] —then you can maybe spend the weekend in jail and talk to the judge on Monday about it, okay?
   ‘Cause that’s kinda where I’m at right now with this.”
(Emphases added.) Still, defendant did not immediately
acknowledge his guilt. He told Schmidt that he was “just a
little scared,” adding, “I don’t even want—I have to do this,
you know[?]” Schmidt turned his focus to defendant’s car:
       “[SCHMIDT:] Well, I don’t want you—I don’t want you
   to lose your car, okay?
818                                                State v. Center

      “[DEFENDANT:] Yeah.
      “[SCHMIDT:] Believe—I’m being real with you.
   When—when I’m being honest, [you want] your vehicle
   back?
      “[DEFENDANT:] Yeah.
      “[SCHMIDT:] So when I saw that car, I know what
   that car means to you.
      “[DEFENDANT:] Yeah.
      “[SCHMIDT:]      I saw how you took care of it.
      “[DEFENDANT:] Yeah.
      “…
      “[SCHMIDT:]      It’s your baby, right?
      “[DEFENDANT:] Yeah. It’s everything I have.
      “…
       “[SCHMIDT:] We can talk about what we need to talk
   about, resolve what we need to talk about today and then
   figure out a way to get your car out so it doesn’t get lost and
   a lien placed on it where you can’t get it out. Okay?”
Finally, after again saying, “I’m just scared,” defendant
chose to avoid going to jail and potentially losing his car
and admitted that he had been the suspect driver the night
before.
          At the conclusion of the suppression hearing, defendant argued that his statements had been involuntary. He
noted that he had maintained his innocence for 20-25 minutes, that Schmidt had engaged in a “two, two-and-a-half
minute speech” about the need for defendant to “tell him the
truth,” and that Schmidt’s express or implied promises of
leniency regarding jail and the recovery of his prized vehicle rendered his confession involuntary as a matter of law.
Defendant alternatively characterized Schmidt’s promises
of leniency as “corresponding … threats if he did not confess … ‘you’re gonna go to jail and your car might get a
lien on it.’ ” The state did not dispute that Schmidt’s statements had prompted defendant’s confession. However, citing
State v. Landers, 

, 

, rev den, 

 (1990), the state argued that, because Schmidt had
Cite as 

 (2021)                              819

probable cause to arrest defendant and therefore could lawfully have carried out his threat of jail, defendant’s statement was not the product of unlawful inducement.
         In the course of the parties’ arguments, the trial
court expressed uncertainty whether the statements that
Schmidt had made were the sort of promises of leniency that
could render defendant’s statement involuntary. The court
observed that, in its view, a promise of leniency is typically a
promise in regard to the crime being investigated. The court
noted that Schmidt had made no promises of leniency as
to the offenses he was investigating; rather, “[i]t was more,
‘we’re just not gonna take you into custody right now.’ ” That,
at a minimum, the court reasoned, indicated that defendant’s statements were not unlawfully induced as a matter
of law.
         Ultimately, the trial court orally ruled that Schmidt
had not unlawfully induced defendant’s confession. The
court found that Schmidt had given defendant the option of
(A) telling him the truth, thereby avoiding jail and gaining
Schmidt’s help with recovering his vehicle, or (B) maintaining his story, which would result in his arrest and at least
a couple of days in jail. Faced with those options, the court
found, defendant had confessed to having been the driver
the night before. The court reasoned that, because Schmidt
had probable cause to arrest defendant and take him into
custody, giving defendant that ultimatum was not, in light
of Landers, sufficient to render defendant’s statement involuntary as a matter of law.
         The trial court then proceeded to consider whether,
in light of Schmidt’s additional comments regarding defendant’s car, the totality of the circumstances rendered his
confession involuntary. After finding that Schmidt’s statements about the car were truthful and that “all he [had]
said was that he would work with him and help him get [the]
vehicle back if he could do that,” the court concluded that
Schmidt’s playing on defendant’s “emotional attachment to
his car” had not been a threat or a promise of leniency.
        In light of those findings and conclusions, the trial
court denied defendant’s motion to suppress his confession.
Following the further denial of his motions to exclude evidence
820                                           State v. Center

of Reviere’s identifications of him as the driver, defendant
waived jury and the trial court found him guilty of attempting to elude a police officer. Defendant now appeals.
         Defendant’s first assignment of error challenges
the trial court’s determination that his confession was voluntary under ORS 136.425(1) and Article I, section 12, of
the Oregon Constitution. On appeal, defendant reprises
the arguments that he made to the trial court, emphasizing that the state bears the burden of proving that his confession was voluntary. In his view, the state cannot satisfy
that burden in light of Schmidt’s explicit threat of jail and
his clear implication that whether defendant would recover
his car would depend, at least in part, on whether defendant told Schmidt what he wanted to hear—that defendant
had, in fact, been the driver of the fleeing car. In response,
the state expressly agrees with defendant’s assertion that
Schmidt threatened “to jail defendant if he did not cooperate and confess his involvement”; the state argues, however,
that Schmidt’s threat was not unlawfully coercive, because
he had probable cause to arrest defendant and therefore was
merely threatening to do something that he had the lawful
authority do. As for Schmidt’s statements about defendant’s
car, the state contends that, under the totality of the circumstances, they cannot be viewed as coercive, because, among
other things, defendant’s cousin was present with him at the
OSP office and available to recover defendant’s car even if he
could not. We turn to those arguments.
         We first consider whether the trial court’s admission of defendant’s confession violated ORS 136.425(1). See
State v. Foster, 

, 

 (1987) (stating the court’s preference for deciding cases on subconstitutional grounds when feasible). As noted, the facts material
to that assessment are not in dispute. Accordingly, we focus
on the trial court’s conclusion that defendant’s statements
were voluntary, which we review for legal error. See State v.
Belle, 

, 

 (2016).
         We begin by reviewing the applicable law. Although,
as noted, our initial focus is on ORS 136.425(1), we adhere
to our practice of discussing that statute together with
Article I, section 12, of the Oregon Constitution, because
Cite as 

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the analysis under the two provisions is substantially the
same. Article I, section 12, provides that “[n]o person shall
… be compelled in any criminal prosecution to testify
against himself.” Similarly, ORS 136.425(1) excludes evidence of confessions and admissions “made under the influence of fear produced by threats.” 4 See State v. Mendacino,

, 

 (1979). Notwithstanding the
statute’s express reference only to threats, not promises,
both ORS 136.425(1) and Article I, section 12, “embody the
common-law rule that confessions made by a defendant in
custody that were induced by the influence of hope or fear,
applied by a public officer having the prisoner in his charge,
are inadmissible against the defendant.” State v. Jackson,

, 

 (2018) (internal quotation marks
omitted). Further, to ensure all defendants the protections
of Article I, section 12, and ORS 136.425(1), out-of-court confessions are presumed involuntary, with the state bearing
the burden of proving voluntariness. 

         Impermissible inducements include promises of
lenient treatment. It is true, as the trial court evidently
recognized, that appellate decisions discussing promises of
leniency often involve an express or implied promise that a
suspect will receive a less severe penalty if he or she confesses. See, e.g., State v. Hogeland, 

, 

 (2017) (officer’s statements regarding treatment
could be viewed as unlawful inducement whether “viewed as
a promise of a less severe outcome or as a promise of no punishment whatsoever”). Moreover, the leading common-law
decision on unlawful inducements, State v. Wintzingerode,

 (1881), contains language that could, in isolation,
be understood as suggesting that the beneficial inducements prohibited by ORS 136.425(1) and its predecessors
are promises only of prosecutorial leniency. That oft-quoted
passage reads as follows:
      “The precise form of words in which the inducement is
   presented to the prisoner’s mind is immaterial. It is sufficient if they convey to him the idea of temporal benefit or

   4
     ORS 136.425(1) provides:
   “A confession or admission of a defendant, whether in the course of judicial
   proceedings or otherwise, cannot be given in evidence against the defendant
   when it was made under the influence of fear produced by threats.”
822                                                            State v. Center

    disadvantage, and his confession follows in consequence of
    the hopes thereby excited.”

 (emphasis added). Although the significance
of the word “temporal” in that passage has never been
expressly considered in the case law, one plausible understanding of the court’s reference to a “temporal benefit” in
Wintzingerode might be that it intended to prohibit only the
inducement of confessions through promises of shorter sentences or, in cases involving offers of immunity, prosecutorial promises of no sentence at all. See Webster’s Third New
Int’l Dictionary 2353 (unabridged ed 2002) (defining “temporal,” in relevant part, as “of or relating to time”). And,
if that were the case, that passage in Wintzingerode might
support the trial court’s apparent understanding that, to be
an unlawful inducement, a promise of “leniency” must be a
promise made in regard to prosecutorial leniency, since the
length of a person’s sentence is, at least initially, a matter
of prosecutorial discretion. However, the case law does not
support that understanding of either Wintzingerode or ORS
136.425(1).5
            As the Supreme Court has explained, “the purpose
of the common-law rule and the statute that now embodies
it,” i.e., ORS 136.425(1), “is to exclude potentially false—and
thus unreliable—confessions from evidence.” State v. Powell,

, 

 (2012) (upholding trial court’s
exclusion, under ORS 136.425(1), of confession induced by
private FedEx investigators); see also State v. Smith, 

, 

 (1986) (stating that “the key to
the ‘free and voluntary’ character of the confession is the
inducement made to the defendant—was there any promise
or threat made to the defendant [that] would elicit a false
confession”). To that end, the Supreme Court has described
the relevant inquiry as follows:
    “As our cases consistently have recognized, confessions are
    unreliable when rendered under circumstances in which
    the confessor perceives that he or she may receive some
    benefit or avoid some detriment by confessing, regardless

    5
       Because we ultimately conclude that the provisions of ORS 136.425(1) are
sufficient to require exclusion of defendant’s confession and reversal of his conviction, it is not necessary to separately discuss whether the application of Article I,
section 12, would lead to the same outcome.
Cite as 

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   of the truth or falsity of the confession. Whether the person offering the benefit or threatening the detriment or the
   person to whom the confession is made are state actors or
   private persons is not, in itself, determinative of the reliability of the confession.”
Powell, 

. The Supreme Court’s recognition that
benefits offered by private actors can undermine the reliability of confessions leaves little room to argue that the only
legally significant promises under ORS 136.425 are those
related to how a person will be prosecuted, because private
parties do not control prosecutions. See 

 (noting
that “the FedEx investigators were private parties and, as
such, did not have actual authority to decide whether the
state would bring criminal charges”). Moreover, what little
room the Powell decision might otherwise have left for such
an argument was immediately foreclosed when the court
went on to explain that “the FedEx investigators also held
out other compelling benefits unrelated to [the] defendant’s
criminal prosecution, over which they did have control[.]”

 (emphasis added).
         The Powell court specifically identified two of those
compelling benefits, both of which would have flowed from
the FedEx investigators’ promise to the defendant that, if
he “cooperated with their investigation, ‘nobody but who’s
in this room needs to know’ about the thefts.” 

 (internal
brackets omitted). First, by implying that the defendant’s
supervisor would not be told of his thefts, the investigators suggested that the defendant would not lose his job if
he confessed. 

 Second, the investigators’ statement also
suggested that the defendant’s wife would not learn of his
alleged involvement in those crimes. 

 As the court concluded, “[t]hose were compelling benefits when offered in
exchange for [the] defendant’s confession, especially when
coupled with the additional assurance that a confession
would not result in criminal prosecution.” 

         Those promises—which the Supreme Court expressly
noted were not related to the defendant’s prosecution—were
significant to the court’s conclusion in Powell that the state
had not met its burden of proving that the defendant’s confession had been voluntary. That holding belies any belief
that, in assessing whether a suspect’s confession is the
824                                             State v. Center

unlawful product of threats or promises, the only potentially
significant promises are those related to prosecution.
          We turn to whether defendant was unlawfully induced
to confess here. As the trial court expressly found in this
case, not only did Schmidt promise defendant that he would
not take him to jail if he confessed, but, additionally, “defendant … proceeded to confess when presented with those
options”; stated differently, defendant’s confession was the
product of Schmidt’s promise that he would not arrest him
if he told Schmidt what he wanted to hear.
         We conclude that, whether Schmidt’s statements
are better understood as threats or as cognizable promises of leniency under ORS 136.425(1), those inducements
were, at least collectively, sufficiently compelling to elicit a
false confession. Once again, this is the applicable test from
Powell:
   “As our cases consistently have recognized, confessions are
   unreliable when rendered under circumstances in which
   the confessor perceives that he or she may receive some
   benefit or avoid some detriment by confessing, regardless
   of the truth or falsity of the confession.”
352 Or at 222. Here, because defendant was facing relatively
minor charges, Schmidt’s promise to only cite him—as well
as to help him avoid losing his prized Honda—could well
have induced a false confession, especially given that the
charges were not serious enough that a jail sentence would
inevitably result from the confession itself. Moreover, as in
Powell, until Schmidt extended a promise of liberty to defendant, he had “staunchly denied any knowledge of or involvement” in the driving offenses that Schmidt was investigating. Id. at 225. At a minimum, the burden was therefore on
the state to establish that that promise was insufficiently
compelling as a matter of law, which it did not do. See id. As
a result, we conclude that the trial court erred in not excluding defendant’s confession.
         In reaching that conclusion, we recognize that the
trial court considered itself bound—as the state argued at
the suppression hearing and argues anew on appeal—by
our decision in Landers, which the trial court understood as
Cite as 

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holding that an officer’s threat to do something that the officer can lawfully do is not a cognizable “threat” under ORS
136.425(1). And, because defendant did not dispute that, at
the time of his confession, Schmidt had probable cause to
arrest him for the offense of attempting to elude a police officer, the court concluded that Schmidt’s threat to arrest him
if he refused to confess was a threat that Schmidt lawfully
could carry out. Thus, the trial court reasoned, that was not
an unlawful threat for purposes of ORS 136.425(1).
         Defendant offers three reasons why, in his view,
the trial court’s reliance on Landers was misplaced. That
case, defendant argues, (1) is inapposite, (2) purports without explanation to rely on cases that themselves lack substantial analysis, and (3) is rooted in Oregon Supreme
Court case law that is not directed at the issue of coerced
confessions under Oregon law but, instead, relates to consent searches under the Fourth Amendment to the United
States Constitution. We agree with defendant that, for each
of those reasons, the trial court’s reliance on that case was
at least somewhat questionable. Moreover, the rationale of
Landers cannot be squared with our more recent decisions
or those of the Supreme Court. Thus, even though Landers
has never expressly been overruled and defendant does not
contend otherwise or advocate that we overrule it now, we
conclude for the reasons that follow that our decision in that
case cannot be viewed as controlling here.
         We begin with defendant’s overarching contention
that Landers simply does not apply here. Although we do so
for reasons somewhat different than those that defendant
advances, we agree that Landers is generally inapplicable. In that case, a state trooper, Codding, questioned the
defendant at his home about evidence suggesting that the
defendant was manufacturing marijuana at another location. Landers, 

. The defendant initially
expressed reluctance to speak with Codding about the investigation. 

. At the suppression hearing, Codding testified that, after “there was a ‘lagging in the conversation,’ ”
he had told the defendant “that he had sufficient information to warrant an indictment for manufacturing marijuana
and that he could either take [the] defendant into custody or
issue him a citation to appear in court at a later time.” 

826                                                         State v. Center

The defendant then confessed to unlawfully growing marijuana. 

         Although the defendant in Landers testified that,
after apparently disregarding his request for an attorney,
“Codding [had] told him that he could either arrest him on
the felony charge or, if [the] defendant cooperated and gave a
statement, he could simply issue a citation,”6 the trial court
rejected that testimony. 

. Rather than rely on the
defendant’s account, the court expressly “adopt[ed] Trooper
Codding’s version of what was said and when it was said
in the course of his conversation with [the defendant].” 

(emphasis in original; bracketed material added). Thus, the
trial court specifically rejected the defendant’s testimony
that Codding had conditioned the defendant’s freedom on
his willingness to cooperate by making a statement.
         The trial court’s finding in Landers suggests to us
two conclusions. First, our statement in that case—that the
“defendant’s confession was not coerced by Codding’s statement that he could either arrest [the] defendant or simply
issue him a citation[,] because … there was probable cause
to arrest [the] defendant[, and] Codding, therefore, did not
threaten to take any action that was not authorized under
the facts”—appears to be dictum. 

. That is,
since the trial court had expressly rejected the defendant’s
testimony that Codding had given him an ultimatum that
led to his confession, we had no reason to decide whether
such an ultimatum would constitute unlawful coercion
under ORS 136.425(1) or Article I, section 12. For that reason alone, Landers is not controlling here. See Halperin v.
Pitts, 

, 

 (2012) (explaining that
the term dictum “commonly refers to a statement that is not
necessary to [a previous] decision” and that, therefore, has
no precedential effect).
        Second, and relatedly, Landers is factually distinguishable. In that case, Trooper Codding merely told the

    6
      The defendant also testified that Codding had said that the charge would
likely be reduced to a misdemeanor if he cooperated, but, on appeal, we concluded
that the trial court had found that Codding had made that statement after the
defendant confessed; accordingly, that statement could not have coerced his confession. Id. at 297-98.
Cite as 

 (2021)                                   827

defendant that there were two avenues Codding could take:
He could “either take [the] defendant into custody or issue
him a citation to appear in court at a later time.” Landers,

. Codding did not condition that choice
on whether the defendant cooperated, and the trial court
rejected the defendant’s testimony that Codding had imposed
such an ultimatum. 

. Here, in sharp contrast,
Schmidt expressly told defendant that he would go to jail if
he continued to maintain his innocence, and the trial court
found that defendant’s confession resulted from that threat.
As a result, defendant in this case faced a threat that the
defendant in Landers did not face, whether or not it was a
threat that Schmidt had the lawful authority to carry out.
Accordingly, as defendant argues, Landers is inapposite.
         As defendant also argues, our observation in
Landers, that a threat to do what is lawfully permitted does
not constitute coercion, appears to rest on shaky ground.
For that proposition, we cited State v. Bates, 

, 

, rev den, 

 (1988), but we did not
discuss Bates or our rationale in that case. Bates, in turn,
is even more sparse in its analysis, and it cites no particular authority for its conclusion. In that case, the defendant
contended that his custodial statements were involuntary
because he had admitted to a burglary after an officer “told
him that he would have to question his mother and brother
if the incident was not resolved.” 

. Bates
does not identify what authority the defendant relied on, nor
does the opinion cite, much less analyze, the statutory or
constitutional bases for its own conclusions. Rather, after
assuming that the trial court had rejected the defendant’s
testimony that an officer had threatened to arrest—as
opposed to merely question—his relatives, the opinion summarily concludes:
      “We presume, therefore, that the officer threatened to question defendant’s relatives about the burglary, which he had
      a right to do. His ‘threat’ did not constitute coercion and
      does not render defendant’s subsequent statements involuntary. See State v. Medenbach, 

, 

 (1980).”

828                                                          State v. Center

          Seeking to understand the significance of that otherwise unadorned statement in Bates, we turn to the single case it cites, Medenbach, but that opinion is similarly
unhelpful. That is, Medenbach sheds little or no light on
the meaning of Bates, because, in its only conceivably relevant part, Medenbach (1) purports to be a Miranda case
and addresses neither ORS 136.425(1) nor Article I, section 12; (2) appears to be more of a consent-to-search case
than a coerced-confession case, because the “threat” in that
case was that the defendant had been told that he would
be arrested if he did not agree to take some field sobriety
tests;7 and (3) cites, as the basis for its conclusion that an
officer’s threat to do something that is lawfully permissible cannot give rise to “constitutionally objectionable”
coercion, a dissenting opinion in State v. Douglas, 

, 

 (1971), cert den, 

 (1972),
which is itself a consent-to-search case based in the Fourth
Amendment.8
         Thus, as defendant points out, even if Landers
would otherwise be controlling in this case, its lack of
explanation—as well as a similar lack of explanation in the
decision it cites as authority—raises serious questions as
to what law it states and whether it correctly states that
law. One might reasonably distinguish between a threat, for
example, to obtain a warrant in a consent-to-search situation from a threat to penalize (by arrest or otherwise) a
person who wishes to exercise his or her constitutional right
against self-incrimination. In the former situation, procuring a warrant is not a punishment for the refusal to consent, nor does it produce evidence, like a confession, that the
state would otherwise not obtain; it is merely an alternative
    7
      As a general matter, a field sobriety test is a “search.” See, e.g., State v.
Nagel, 

, 

 (1994).
    8
      For two thoughtful views on that history, one might consider Justice Linde’s
succinct dissenting opinion in State v. Bates, 

, 

 (1988)
(Linde, J., dissenting) (discussing that history and the “dubious proposition”
apparently endorsed in Court of Appeals’ Bates and Medenbach decisions), and
Justice Kistler’s more expansive discussion of Douglas and its Supreme Court
progeny in State v. Moore, 

, 

, adh’d to as modified on
recons, 

, 

 (2014) (Kistler J., concurring). Both opinions can
be read as cautioning against the undiscerning reliance on snippets from earlier
case law that arguably characterizes our decisions in cases such as Medenbach,
Bates, and Landers.
Cite as 

 (2021)                             829

way of accessing the same, lawfully obtainable evidence.
As a result, explaining to a suspect that a warrant will be
sought if the suspect refuses to give consent does not give
an officer access to evidence that he or she would not ultimately obtain even if the suspect refused to waive any constitutional rights. A coerced confession, on the other hand,
by definition, compels self-incrimination and therefore
discloses to the state evidence that it would otherwise be
unable to obtain—a person’s confession—unless the person
gave up the absolute right not to confess. If there is a reason
that a confession coerced through lawful threats does not
contravene the protections of ORS 136.425(1) and Article I,
section 12, it cannot be found in Landers or the line of cases
on which that decision apparently relies.

         Ultimately, however, it is not necessary to conclusively decide whether our decision in Landers—or, for that
matter, in Bates or Medenbach—stated, at the time of their
issuance, a binding holding that an officer’s threat to take
some action that the officer has lawful authority to take does
not constitute unlawful inducement under ORS 136.425(1)
and Article I, section 12. We need not decide that question
because, even if that was the state of the law at the time we
issued Landers (the most recent of those three opinions), it
cannot be reconciled with decisions that we and the Supreme
Court have issued since that time, as we will explain.

         The Supreme Court’s analysis in Jackson illustrates the conflict between the per se rule articulated in
Landers and the more nuanced approach dictated under
ORS 136.425(1). In Jackson, 

, DNA evidence led
to the defendant becoming a suspect in the murder of four
women whose bodies had been found 30 to 40 years earlier.
Following extensive questioning over the course of a morning, the defendant finally confessed to having killed one of
the victims; after further questioning that same afternoon
and the next morning, the defendant acknowledged that he
“may have done” another of the murders. 

. After
the trial court granted the defendant’s motion to suppress
those statements as involuntary under ORS 136.425(1),
the state pursued an interlocutory appeal in the Supreme
Court. 

.
830                                            State v. Center

         On appeal, the Supreme Court identified the relevant inquiry as “whether the state [had] met its burden to
prove that [the] defendant’s free will was not overborne and
his capacity for self-determination was critically impaired
and that he made his statements without inducement from
fear or promises.” 

. The court further explained
that the underlying issues were interrelated and that it was
required to consider “the totality of the circumstances in
reaching a legal conclusion about the voluntariness of defendant’s statements.” 

. After agreeing with the state
that two of the “basic themes” of the interrogation were not
“the sort of themes that have concerned [the] court in the
past,” the court turned to the interrogating detectives’ third
theme—the “legal ramifications of [the] defendant’s failure
to confess.” 

.
          Of particular relevance here are at least two of the
threatened “legal ramifications”: (1) unless the defendant
told the detectives when he stopped killing women, they
would view him as a suspect in additional murders; and
(2) if he did not confess but was nonetheless convicted, they
“would do everything they could to ensure that he received
a harsh sentence.” 

 Relying, in part, on its earlier decision
in State v. Linn, 

, 

 (1946), the court
considered those threats significant. Specifically, as in Linn,
where an officer had told the defendant that if he did not
confess “the police would fight him to the last inch,” Jackson,

 (internal quotation marks omitted), the detectives in Jackson told the defendant that they “would do their
best to ensure that he received the maximum possible sentence.” 

        Although there would seem to be no question that
the detectives in Jackson could lawfully have continued to
investigate whether the defendant was involved in other
murders or do what they could to ensure that the defendant
received a lengthy sentence if he were to be convicted, the
Supreme Court did not discount the potentially coercive
nature of those threats. Rather, it considered whether, under
the totality of the circumstances, those threats constituted
“impermissible inducement[s],” i.e., “one[s] that convey[ ] to
a defendant the idea of a threat or promise.” 

 (discussing principles gleaned from Wintzingerode and Linn).
Cite as 

 (2021)                                             831

Thus, the operative question under ORS 136.425(1) is—and,
in light of the Supreme Court’s reliance on the case law predecessors to the statute, has apparently long been—whether
a person’s confession is the unlawful product of threats, not
whether the threats themselves are lawful or unlawful.
          Our own case law reflects the same principle. For
example, in Belle, 

, the defendant was
suspected of allowing his cousin to use his bank account
to facilitate fraudulent check-related thefts. In the course
of questioning the defendant, a detective determined that
he was in the National Guard. 

. Evidently sensing a potential vulnerability, the detective first asked the
defendant whether he was familiar with the military code
of conduct (he was), and then told the defendant that the
matter could “be handled on the state level and not under
the military code”; the detective further emphasized that he
had not yet spoken with the defendant’s commanding officer.

          Following a suppression hearing, the trial court
found that the detective’s “statements were ‘compelling,’ ‘significant,’ and an inducement that prompted [the] defendant
to confess.” 

. Nonetheless, the trial court concluded
that the defendant’s confession was voluntary and admissible. 

 We disagreed. As we explained, “once the trial court
found as fact that [the] defendant’s confession was induced
by [the detective’s] statements, then it necessarily follow[ed]
as a matter of law that the confession could not be admitted
under ORS 136.425.” 

 Of particular significance here, we
observed that “[i]t does not matter whether the person making the threat actually has the ability or authority to carry it
out, as long as the defendant reasonably perceives the threat
to be real.” 

 (discussing Powell; emphasis added).
        For two reasons, the trial court’s reliance on Landers
cannot be reconciled with Belle. First, as in Jackson, there
is no reason to believe that the detective’s implicit threat9
    9
      Our decision in Belle—as in most cases addressing ORS 136.425(1)—does
not categorically distinguish between “threats” and “promises” of leniency.
Rather, it appears to recognize that there is often no meaningful distinction
between the two, as a threat to take some adverse action if a suspect refuses to
confess can often be viewed as a promise not to take the same adverse action if
the suspect does confess.
832                                                           State v. Center

in Belle—to involve the defendant’s military commander—
was something that the detective could not lawfully do.
Nonetheless, we held that the threat to take that action constituted coercion. 

. Thus, contradicting the dictum
found in Landers, the holding of Belle appears to be that an
officer’s threat to take a lawful course of action does constitute impermissible inducement under ORS 136.425(1), at
least if the state does not satisfy its burden of proving that a
defendant’s will was not overborne by that inducement.
         Second, even if the detective in Belle did not have
the authority to report the defendant’s conduct to his commanding officer, that case would remain irreconcilable with
Landers. Even without its explicit statement that, for purposes of voluntariness, an officer’s actual authority—or lack
of authority—to carry out a threat is irrelevant, Belle cannot reasonably be understood to permit officers to induce
confessions so long as they do so by means of threats that
they can lawfully make good on. For one thing, such a rule
would legitimize compelled self-incrimination, which almost
certainly would contravene an individual’s constitutional
rights, regardless of whether it also violated ORS 136.425(1).
For another, it would defy logic to suggest that an idle threat
may be sufficient to violate the statute, but a threat that has
the potential to actually be carried out cannot. Cases like
Powell and Belle avoid such an incongruous result by recognizing that what matters is not whether the threat is real,
but whether “the defendant reasonably perceives the threat
to be real.” Belle, 

 (discussing Powell).10
        In this case, the trial court implicitly found that the
prospect of being arrested prompted defendant to confess,
and the state does not contend otherwise. Under Belle, there
arguably is nothing left to decide. See Belle, 

 (“Once the trial court found as fact that [the] defendant’s
confession was induced by [the detective’s] statements, then

     10
        Not to unduly belabor the point, but the consequence of making the existence of actual authority to carry out a threat dispositive under ORS 136.425(1)
is that, if a suspect reasonably believed a threat to be real but was mistaken, then
he or she may have been impermissibly induced to confess, but if the suspect’s
reasonable belief that the officer could actually carry out the threat was correct,
then the suspect has no recourse under the statute and the induced confession is
admissible.
Cite as 

 (2021)                                               833

it necessarily follow[ed] as a matter of law that the confession could not be admitted under ORS 136.425.”). However,
whether or not Schmidt’s threat of arresting defendant
rendered his confession involuntary as a matter of law, the
state does not argue that, if that threat is appropriately considered as part of the totality of the circumstances, the state
has nonetheless satisfied its burden of proving that defendant’s confession was voluntary. We conclude that defendant’s confession, following as it did upon Schmidt giving
defendant an ultimatum—effectively, “confess or you will
go to jail and may well find yourself unable to recover your
most prized (or only) belonging”—was induced by Schmidt’s
threats and promises and that the state has not shown that
it was nonetheless voluntary. We therefore conclude that the
trial court erred in concluding otherwise.
        We further conclude that the trial court’s error was
not harmless. The state does not contend that any such
error would have been harmless, and we agree with defendant that, notwithstanding Riviere’s testimony identifying
him as the driver, the erroneous admission of his confession
impaired his ability to challenge that identification and was
otherwise harmful to his defense.11 Accordingly, we reverse
and remand for a new trial.
           Reversed and remanded.
           MOONEY, J., dissenting.
          The trial court did not err when it denied defendant’s motion to suppress his admission to being the driver
of the pursued vehicle. The majority disagrees and concludes
that defendant’s confession was induced by the investigating officer’s “ultimatum” that defendant either level with
him or spend the night in jail and jump through the hoops
necessary to retrieve his impounded car upon release from
jail. In reaching that conclusion, the majority walks through
a detailed discussion of the prohibition against compelled

     11
        As noted, we do not address the merits of defendant’s argument that the
trial court erroneously admitted evidence identifying him as the driver of the
fleeing vehicle. 314 Or App at 815 n 1. However, for purposes of determining
whether the erroneous admission of defendant’s confession was harmful, we consider that evidence in light of the trial that occurred, which included the admission of the eyewitness testimony.
834                                              State v. Center

self-incrimination, specifically focused on unlawful inducements. It surveys cases ranging in publication date from
1881 to the present day, reminding the bench and bar how
to distinguish between dictum and precedential holdings.
The majority highlights just how those cases fall short due
to “sparse” analysis, “somewhat questionable” reliance on
other cases, and the use of “unadorned” statements within
the opinions themselves. In the end, there can be no doubt
that the law on this important legal topic is complex and
that the proper application of that law to any particular
case is fact-driven. But the fact that the law is complex, or
even that a decision addressing a complex area of the law
may be impressively written, does not make that decision
right. I write separately because, when the law is properly
applied to the facts of this case, it is clear that the trial court
correctly denied defendant’s motion to suppress. I would
affirm.
         Officer Schmidt provided defendant with accurate
information when he told him that he thought he had probable cause to arrest defendant and that, if he did arrest him,
defendant’s car could be impounded. Schmidt explained
that the next step in his investigation would either be (1) to
issue defendant a citation requiring him to appear in court
at a later date or (2) to arrest defendant and immediately
take him into custody. If Schmidt chose the first option,
defendant would be allowed to leave the interview in his
car. If Schmidt chose the second option, defendant would be
taken into custody and booked into the local jail. The second
option included the possibility that defendant would spend a
night or two in jail (it was the weekend) and impoundment
of his car. Whether defendant’s cousin who was present at
the police station would have been permitted to take defendant’s car home does not appear to have been discussed.
         If, at that point in the conversation, Schmidt had
simply told defendant which option he had decided to use,
we would not be addressing the question of whether Schmidt
had induced an admission from defendant through the use
of a threat or promise in violation of Article I, section 12, of
the Oregon Constitution. That is because there is nothing
wrong with an officer advising a suspect about his investigation or what the officer’s next steps will be. One might even
Cite as 

 (2021)                              835

say that an officer providing accurate information about the
status of his or her investigation to the person who is the
subject of that investigation is a good idea. So far as I am
aware, and assuming the suspect has not invoked his right
to have counsel present, there is also nothing wrong with an
officer simply asking a suspect what happened or what his
involvement might have been.
         I agree, however, that, when the officer asks a suspect what happened after explaining to him the different
outcomes he could expect depending upon which answer he
gives, we must evaluate whether the question thus posed
overbore the suspect’s capacity for self-determination,
inducing an admission or confession regardless of its truth.
In other words, we ask whether the officer tied one potential
answer to a threat so undesirable or a promise so desirable
that the suspect’s choice to give a different answer, as a practical matter, became very difficult—predictably yielding an
admission or confession even if the admission or confession
is not true. Such admissions and confessions are inherently
unreliable, and we do not allow a party to use such statements as evidence against the defendant.
        Turning to the facts of this case, I agree that, when
Schmidt asked defendant to “level with [him]” and to “tell
the truth,” he was encouraging defendant to speak with him.
To be sure, his question was not hypothetical—he expected
an answer. Schmidt was attempting to engage defendant in
a conversation about the crimes that he was investigating. I
also agree that, because Schmidt first spelled out the consequences that would follow if defendant were to admit—or not
admit—that he was the eluding driver, Schmidt’s question
amounted to an inducement requiring us to assess whether
the law prohibited that particular question as coercive.
        Defendant points to two of Schmidt’s statements as
unconstitutionally coercive. First, he argues that Schmidt’s
presentation of an opportunity to receive a citation instead
of a weekend in jail if he “told the truth” was both a threat
and a promise of leniency. Second, he argues that Schmidt
preyed upon his specific vulnerabilities when he promised
to return defendant’s car if he “told the truth” rather than
having it impounded.
836                                           State v. Center

         Properly framed, our task is to determine whether
the state demonstrated that defendant’s admissions were
voluntary—“the product of [his] free will.” State v. Vasquez-Santiago, 

, 

 (2019). “The test
for voluntariness is whether, under the totality of the circumstances, the confession is the product of an essentially
free, unconstrained, and informed choice, or whether a person’s capacity for self-determination is critically impaired.”
State v. Hogeland, 

, 

 (2017)
(citing State v. Ruiz-Piza, 

, 

(2014)).

         First, Schmidt’s offer to cite defendant rather than
arrest him if he “told the truth” is not a cognizable “promise of leniency,” as we have defined that term. Schmidt did
not promise defendant immunity from criminal liability in
exchange for an admission or confession. And he did not
threaten defendant with harsh or increased penalties if
he chose not to confess. In other words, defendant’s admission was not “obtained by an express or implied promise of
immunity or leniency” and, therefore, was not “involuntary
as a matter of law[.]” State v. Pollard, 

,

, rev den, 

 (1995); see also State v.
Ely, 

, 

 (1964); Hogeland, 

; State v. Goree, 

, 

(1997), rev den, 

 (1998); State v. Aguilar, 

, 

 (1997) (“It is assumed that when
a person confesses in response to a promise that the person will not be charged with the crime for which the confession is made, the person’s confession is not the product of an
essentially free and unconstrained choice.”). The Supreme
Court and this court have consistently held that promises of
immunity or leniency refer to a promise that the suspect will
receive preferable prosecutorial treatment. See Hogeland,

 (suppressing a confession when the officer implied that, by confessing, the defendant would receive
“treatment” rather than “punishment”); State v. Powell, 

, 

 (2012) (suppressing a confession when the investigator’s statements implied that the
defendant could avoid prosecution by confessing); Pollard,

 (suppressing a confession when the officer
offered to “help” the defendant if he told the truth and that
Cite as 

 (2021)                              837

he would “take [the case] to a grand jury” if he did not tell
the truth); State v. Capwell, 

, 

(1983) (suppressing the defendant’s confession where, based
on the interviewing officer’s statements, the “[d]efendant’s
inference that his confession would assure him of treatment
rather than eventual incarceration was reasonable under
the circumstances”). I do not question the trial court’s finding that defendant’s inculpatory statements were prompted
by Schmidt’s offer to cite him in lieu of arresting him, but
that “offer” was not a promise of immunity or leniency
because it would not affect how—or whether—defendant
would be charged or prosecuted. I disagree with the majority’s
conclusion to the contrary. 314 Or App at 823.

          The majority conflates a “promise of leniency” with
other types of inducements and, in so doing, bootstraps the
per se exclusionary rule, which has been specially carved
out for promises of prosecutorial leniency. This is not a per se
case because Schmidt did not offer defendant leniency. The
majority essentially ignores Aguilar, Hogeland, Goree, and
Ely, all of which involved promises of prosecutorial leniency
and all of which held that such promises are unconstitutional inducements as a matter of law. Instead, the majority
questions—but does not claim to disturb—that existing case
law and extends the per se exclusionary rule to this case
even though this case does not involve a promise of prosecutorial leniency. The majority mentions Wintzingerode and—
somewhat grudgingly—acknowledges that it “could, in isolation, be understood” to say that the exclusionary rule applies
only to promises of prosecutorial leniency. 314 Or App at
821 (quoting State v. Wintzingerode, 

 (1881)). It
then focuses on the word “temporal” as it was used in that
140-year-old case, rather than on the word “leniency,” as
we have used that term in the decades since Wintzingerode
was published. “Leniency” means “the quality or state of
being lenient,” which, in turn, means “of mild or tolerant
disposition or effect: not harsh, severe, or strict.” Webster’s
Third New Int’l Dictionary 1293 (unabridged ed 2002). The
majority also ignores specific passages from Aguilar and
Goree, which emphasize that promises of immunity or leniency on specific charges invalidate the subsequent confession only as to those charges. See Goree, 

838                                                        State v. Center

(“[T]he invalidating effect of a promise of immunity or
leniency as a matter of law applies only to the charge with
respect to which the promise was given.” (Emphasis in
original.)); Aguilar, 

. We would not have
focused so pointedly on charging decisions in those cases if
the term “promise of leniency” did not, in fact, refer to such
charging decisions.
         In this context, we have consistently used the
phrase “promise of leniency” to mean promise of prosecutorial leniency. I would conclude that the per se exclusionary
rule applies to promises of some sort of “disposition or effect”
that the officer has no power to provide—that is, prosecutorial leniency—not the “leniency” associated with an offer
of an immediate benefit that is within the officer’s power
to provide and that has nothing to do with what charges
may or may not be brought by the prosecutor’s office. I would
reject defendant’s argument that Schmidt’s offer was one of
leniency.
         Because Schmidt’s offer was not a promise of leniency, the question is thus whether, under the totality of the
circumstances, Schmidt’s inducements “overbore” defendant’s will.12 The trial court relied on State v. Landers, 

, 

 (1990), to conclude that Schmidt’s
inducement was not sufficiently coercive. In Landers, a police
officer had probable cause to arrest the defendant and presented him with a choice: He could take him into custody or
issue a citation to appear in court at a later time. 

.
The defendant then confessed and was cited. 

 The trial
court denied the defendant’s motion to suppress his confession, and he was convicted. 

 He appealed his conviction,
arguing, among other things, that his confession was the
product of a coercive threat to arrest him in lieu of a citation. 

. We affirmed the trial court’s denial of the
defendant’s motion to suppress, concluding that his confession was voluntary because the officer did not threaten to do
anything unauthorized by the facts, and because a reasonable person would not have been induced to incriminate him
or herself under those circumstances. 

 at 297-98 (citing

   12
      On this point, I agree with the majority; our inquiry is much broader than
simply looking to whether Schmidt’s offer was a promise of leniency.
Cite as 

 (2021)                             839

State v. Bates, 

, 

, rev den, 

 (1988)). Cf. State v. Moore, 

, 

 (2013), adh’d to as modified on recons, 

, 

 (2014) (holding, in the context of searches under
Article I, section 9, of the Oregon Constitution that, when
“ ‘officers threaten only to do what the law permits them to
do, the coercion that the threat may produce is not constitutionally objectionable’ ” (quoting State v. Hirsch, 

, 

 (1974))); State v. Douglas, 

,

 (1971), cert den, 

 (1972) (holding
same).
         Defendant acknowledges that, in Landers, we held
that inculpatory statements that are the product of an officer’s threat to take legal action are not necessarily involuntary. Landers, 

. He argues that Landers is
inapposite because it was based on case law that predates
our voluntariness analysis under both Article I, section 12,
and ORS 136.425. The majority says that the trial court’s
reliance on Landers was “somewhat questionable.” It notes
that Landers has not been overruled and it mentions that
we are not asked to overrule it now.
         Landers, in fact, has not been overruled and we have
not held that a threat to take lawful action, by itself, necessarily renders an admission involuntary. See, e.g., Ruiz-Piza,

 (citing State v. Hovater, 

, 

 (1979), for the proposition that “accurately
informing a defendant of the consequences of his refusal
to cooperate is permissible” even when those consequences
include “being separated from his children”). Cf. Moore, 354
Or at 511 (Kistler, J., concurring) (rejecting the possibility that “reminding a suspect of the adverse consequences
that will flow from whatever decision he or she makes will
automatically render the resulting choice involuntary”). I
reject the majority’s scuttling of Landers and its rendering
as superfluous much of our case law that describes the role
that the totality of the circumstances approach plays in the
voluntariness analysis for inducements other than promises
of leniency.
         I cannot join the majority in its reliance upon State
v. Belle, 

, 

 (2016), as the
840                                           State v. Center

power-assist the majority needs to leap from the causal link
between Schmidt’s question and defendant’s answer to the
conclusion that the answer was improperly coerced. The
majority ignores the importance of assessing the question
and answer in the context of the totality of the circumstances
when it concludes that there is “nothing left to decide” if a
defendant’s statements were induced by an officer’s question. We repeatedly focus on the nature, extent, and severity
of an officer’s threat, promise, or other inducement in our
cases precisely because exclusion requires more than just a
causal link. There are countless examples of inducements
that lead directly to confessions that nevertheless do not
overpower a defendant’s free will.
         I have no trouble imagining a scenario where a
promise to take legal action could be sufficiently coercive
to render a person’s statements involuntary and, therefore, inadmissible. But I would not limit an officer’s ability
to investigate a crime by prohibiting altogether the use of
promises to take lawful action. The question of voluntariness—when the threat or promise is not one of prosecutorial leniency—must fundamentally be answered utilizing a
totality of the circumstances inquiry. Our inquiry is subjective. State v. Pryor, 

, 

(2021).
        During Schmidt’s investigation, defendant explained
that he had “been here before” and “done this before,” in reference to his experience with the criminal justice system
and his incarcerative history. In other words, he understood
the potential consequences of speaking with the police, and
he communicated that to Schmidt after being advised of his
Miranda rights. Given that the relevant inquiry is whether
defendant’s “capacity for self-determination was … critically impaired,” State v. Rodriguez-Moreno, 

, 

 (2015), defendant’s experience with police
encounters provided some context for understanding the
conversation between Schmidt and defendant that is otherwise lacking in the majority’s analysis.
        Turning to the two statements at issue, I would
conclude that, notwithstanding Schmidt’s inducements, the
state met its burden to establish that defendant’s statements
Cite as 

 (2021)                             841

to Schmidt were voluntarily made. First, defendant told
Schmidt his version of events after Schmidt explained that
he had probable cause to arrest him based upon an eyewitness who identified him as the driver who left the parked
car. Essentially, Schmidt told defendant that he could arrest
him or cite him, regardless of whether—or what—defendant
said to Schmidt at that time. As previously explained, he did
not threaten or make any promises about potential prosecutorial decisions; he only threatened to take actions that were
within his lawful authority to take after he explained that
to defendant. Combined with the fact that defendant had
experience interacting with the police, those facts are not
sufficient, in my view, to support an inference that defendant’s will was “overborne” or that “his capacity for self-determination was … critically impaired” by Schmidt’s
offer to cite, rather than arrest, him. Rodriguez-Moreno, 

.
         We have repeatedly made clear that “coercive” techniques and even lying are not unconstitutionally coercive by
themselves. See Pryor, 

 (“[T]he detective’s
false representation does not point to the conclusion that the
defendant’s will was overborne.”); State v. Chavez-Meza, 

, 

 (2019) (concluding that
the defendant’s confession was voluntary even after incorrectly advising the defendant that charged crimes could
be less serious if he believed that a victim of sexual abuse
was 18). Schmidt’s inducements could fairly be construed
as “coercive,” but not unconstitutionally so. He never lied
to defendant; he never promised prosecutorial immunity;
he offered to work with defendant to avoid taking him into
custody—which he was entitled to do. Schmidt did not subject defendant to bright lights or prolonged isolation or questioning, and he did not deprive defendant of food and water
in order to elicit a confession. And, of course, even “the fact
that an interrogation is physically and mentally demanding
does not necessarily make the admissions that are adduced
involuntary and inadmissible.” See State v. Jackson, 

, 

 (2018).
        Second, Schmidt stated that he wanted to “figure
out a way to get [defendant’s] car out so it doesn’t get lost
and a lien placed on it to the point where you can’t get it
842                                           State v. Center

out[.]” It is true that preying upon a defendant’s acute vulnerabilities can render a subsequent confession involuntary.
See Vasquez-Santiago, 

 (preying upon
a father’s concern for his child’s safety); Ruiz-Piza, 

 (finding that a confession was involuntary when,
combined with another factor, the police “suggested—if not
outright stated”—that the defendant’s child’s “medical care
would be dictated by what defendant told them”). Here,
defendant agreed that he did not want to lose his car. But
it was Schmidt who described defendant’s car as “all [defendant] had” and it was Schmidt that referred to the car as
defendant’s “baby.” No doubt, Schmidt chose those words to
appeal to defendant’s emotions, but the sequence of questions
and answers quoted by the majority in its opinion reflects
that Schmidt’s invocation of defendant’s car was more in the
nature of pushing defendant’s “buttons” than it was preying
on an acute vulnerability such as defendant’s love for a child
or other family member. In my view, the promise to release
the car to defendant if he told the truth was not one that
would have overpowered defendant’s will and induced him
to falsely incriminate himself given the record before us.

         Unlike most of our cases focusing on this particular
inquiry, the object of defendant’s vulnerability was his car—
not a person, Vasquez-Santiago, 

 (the defendant’s child), not his “sense of empathy or guilt,” Rodriguez-Moreno, 

 (combined with other factors),
and not his religious convictions, Ruiz-Piza, 

 (combined with invoking the defendant’s child). And
the particular type of action that would have been taken had
defendant not confessed would have been, at worst, placing
an officer’s hold on the car before defendant could retrieve
it. There is no evidence that defendant’s car was his home;
no evidence that it was his only transportation to work; no
evidence that he needed the car that night for parenting
time or some other family obligation; and no evidence that
the car held emotional significance for him beyond the fact
that he apparently took good care of it. In fact, there is no
evidence to suggest that we should view defendant’s “relationship” with his Honda similar to that of the relationship
he might have with a child or spouse. The majority refers to
the car as “prized,” but that changes nothing. I would not
Cite as 

 (2021)                                  843

conclude, as the majority does, that there is something so
special about defendant’s car that the temporary inconvenience of impoundment would upend his capacity for self-determination and cause him to confess to a crime he did
not commit. As we have explained,
   “[f]ew things are more powerful than the familial bonds
   that tie us together—especially the bonds of love and protection that a parent has for his or her child. When those
   bonds are used as a pressure point to induce a confession to
   a crime, there is a risk: Was the confession a product of free
   will, or the result of an inducement of hope or fear such as
   to render the confession unreliable?”
Vasquez-Santiago, 

. Schmidt’s use of defendant’s Honda as a “pressure point” pales in comparison to
using a familial bond as a “pressure point” and it seems
to me that one must abandon common sense to conclude
otherwise.
         At stake was the possibility that defendant’s Honda
would be impounded and that he might spend a night or two
in jail. Those potential consequences are in an altogether
different league than those at issue in the cases already
described where the stakes involved such things as threats
by an officer that he would do his best to ensure the suspect received the harshest sentence possible, threats to call
a suspect’s commanding officer, threats to call a suspect’s
spouse, or telling a suspect that his confession was the key
to securing the release of his family members, including an
infant child—matters much more likely to overcome a defendant’s free will and coerce him to give a false, inculpatory
statement.
         But that is not this case. Not even close.
         I respectfully dissent.
         Egan, C. J., and DeVore, J., join in this dissent.