State v. Reed

                                      453

      Argued and submitted January 27, 2021, affirmed February 9, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     DEBORAH LYNN REED,
                        Defendant-Appellant.
                    Lincoln County Circuit Court
                      19CR12088, 18CR64481;
                     A170999 (Control), A171000
                                   

     Defendant appeals from a judgment of conviction for various drug crimes,
raising two assignments of error. In the first, defendant contends that the trial
court erred in partially denying her motion to suppress statements that she made
without Miranda warnings in violation of Article I, section 12, of the Oregon
Constitution and evidence derived from that violation. In the second, she argues
that the court erred in imposing a sentence of imprisonment that exceeded the
statutory maximum. Held: Defendant was not in compelling circumstances when
two officers questioned her for two minutes in the presence of her probation officer. The officers did not exert significant pressure on defendant and, given the
probation officer’s nonparticipation in the interview, his presence was not compelling under State v. Dunlap, 

, 

 (2007). As to the second assignment of error, it was unpreserved, and the Court of Appeals declined
to exercise its discretion to review it as plain error.
    Affirmed.




    Sheryl Bachart, Judge.
   Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Shannon T. Reel, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
454                            State v. Reed

  SHORR, J.
  Affirmed.
  Ortega, P. J., concurring.
Cite as 

 (2022)                              455

        SHORR, J.
         Defendant appeals from a judgment of conviction
for various drug crimes, raising two assignments of error.
In the first, defendant contends that the trial court erred
in partially denying her motion to suppress statements
that she made without Miranda warnings in violation of
Article I, section 12, of the Oregon Constitution and evidence
derived from that violation. In the second, she argues that
the court erred in imposing a sentence of imprisonment that
exceeded the statutory maximum. Defendant also appeals
from a judgment revoking her probation in another case, on
the ground that a reversal of her convictions will require
a reversal and remand of the probation revocation as well.
As we explain below, we conclude that the trial court did
not err in denying her motion to suppress because defendant
was not in compelling circumstances when she made the
unwarned statements. As to defendant’s second assignment,
it is unpreserved, and we decline to exercise our discretion
to review it as plain error. Accordingly, we affirm.
         We review the trial court’s denial of a defendant’s
motion to suppress for legal error and are bound by the
court’s findings of historical fact if there is constitutionally
sufficient evidence in the record to support them. State v.
Love-Faust, 

, 

, adh’d to as
modified on recons, 

, 

 (2021). We
set out the facts consistently with the trial court’s explicit
and implicit findings and its decision denying, in part, the
motion to suppress. 

 Defendant was on probation in an
earlier case. The terms of her probation required her, among
other things, to attend meetings with her probation officer.
In accordance with those conditions, defendant attended
a prearranged meeting with her probation officer, Officer
Eoff, at the Lincoln County Parole and Probation office to
discuss her compliance with her probation.
        Around the time of her meeting, Officer Bales of
the Newport Police Department received information from
a confidential informant that defendant had sold methamphetamine. The informant told Bales that defendant had
sold drugs earlier that same day and likely still possessed
drugs on her or in her car. Because Bales was responding
456                                            State v. Reed

to another call when he received that information, he contacted Sergeant Haynes and Officer Humphreys, also of the
Newport Police Department.
         Haynes and Humphreys located defendant’s car
soon after, parked at the parole and probation office.
Defendant was still inside meeting with Eoff. The officers
went inside the office and found defendant in her meeting.
Humphreys knocked on the door to Eoff’s office, “stuck [his]
head in” the doorway, and asked to speak with both Eoff
and defendant. Eoff and defendant agreed, and the officers
entered the office. Humphreys sat in a chair and Haynes
stood near the doorway. Haynes explained “that they were
there because they had information that … defendant was
selling drugs.” Haynes told defendant “that he knew she
was selling drugs again and asked her how much she had
on her.” In response, defendant “denied having drugs on her
and offered up her purse and her person for search.” Haynes
did not respond to defendant’s offer but instead “asked
[defendant] if [he] could search her vehicle, if there was any
in her vehicle.” Defendant denied having drugs in her car,
and handed Haynes the keys to her car.
         After giving her keys to Haynes, defendant “offered
reasons why she was selling,” explaining that she “was trying very hard” and had had difficulty finding work. Haynes
told defendant that he was going outside to search her car
and that Humphreys would remain inside with defendant.
He explained that defendant could revoke her consent to
the search “at any time” by telling Humphreys, who would
notify Haynes of defendant’s revocation by radio. That initial interaction lasted “approximately [two] minutes.” Eoff
was present but did not make any statements or ask defendant questions.
         Bales arrived to help Haynes search defendant’s
vehicle. During the search, the officers discovered methamphetamine, heroin, and other drug paraphernalia. Meanwhile, Humphreys continued questioning defendant in
Eoff’s office and also in a conference room in the building.
Defendant made incriminating statements. Humphreys also
searched defendant’s purse and phone and discovered incriminating evidence during those searches. The questioning
Cite as 

 (2022)                              457

lasted about 30 minutes. Defendant was never advised of
her Miranda rights. At the conclusion of the questioning and
searches, defendant was arrested and charged with various
crimes relating to the sale and possession of methamphetamine and heroin.
          At the motion to suppress hearing, the officers testified that defendant was not required to talk to them and
was free to end the questioning at any time. Eoff testified
that defendant was not free to leave the parole and probation office. Once defendant arrived at the parole and probation office for her scheduled meeting, Eoff expected her to
stay at the office until the meeting was complete. According
to Eoff, if defendant had left the meeting early without an
approved excuse, she could have violated the terms of her
probation. In addition, Eoff explained that “defendant had
to be escorted at all times in and out of his office or the conference room because of the rules of the [parole and probation] office.”
         Defendant moved to suppress the statements she
made in response to the officers’ questioning and the evidence discovered in her car, purse, and phone. She argued
that the officers had violated her Article I, section 12, right
by interrogating her in compelling circumstances without
first advising her of her Miranda rights. She further argued
that her consent to the search of her car, purse, and phone
was the product of that Miranda violation. The state argued,
in response, that Miranda warnings were not required
because defendant was not in compelling circumstances
during any part of the 30-minute encounter with Haynes
and Humphreys.
        The trial court determined that “the officers did
not exert the type of pressure that results in a finding of
compelling circumstances within the first [two] minutes of
the encounter.” Therefore, the court declined to suppress
defendant’s statements during her initial interaction with
Haynes “up to the time that [Haynes] left the room with
defendant’s car keys,” as well as the evidence discovered
during the search of her car. However, the court concluded
that the state had failed to prove that circumstances were
not compelling during the later questioning. As a result, the
458                                                             State v. Reed

court granted defendant’s motion to suppress all of the statements that defendant made after Haynes left Eoff’s office,
and the evidence discovered during Humphreys’s searches
of defendant’s purse and phone.
         Defendant challenges the trial court’s partial denial
of her motion to suppress. The parties raise substantially
the same arguments on appeal as they did in the trial
court. Defendant contends that she was in compelling circumstances during the initial two-minute encounter with
the police and that her unwarned statements during that
encounter should be suppressed. She further contends that
her consent to search her vehicle was the product of that
Miranda violation and that the evidence discovered as a
result of that consent should also be suppressed.1 The state
argues that defendant was not in compelling circumstances,
and that, if Miranda warnings were required, defendant’s
voluntary consent to search was attenuated from the violation such that the evidence discovered in the car is
admissible.
          Article I, section 12, provides that “[n]o person shall
be … compelled in any criminal prosecution to testify
against himself.” To protect a person’s right against compelled self-incrimination under that section, police must give
Miranda warnings before interrogating a suspect who is in
custody or compelling circumstances. State v. Nichols, 

, 

 (2017). In determining whether
compelling circumstances exist, the “overarching inquiry
is whether the officers created the sort of police-dominated
atmosphere that Miranda warnings were intended to counteract.” State v. Roble-Baker, 

, 

(2006). When so inquiring, we consider the totality of the
circumstances, including the following nonexclusive factors:
(1) the location of the encounter; (2) the length of the encounter; (3) the amount of pressure exerted on the defendant; and
(4) the defendant’s ability to terminate the encounter. 

. The “question whether the circumstances were compelling does not turn on either the officer’s or the suspect’s
     1
       Defendant does not raise an Article I, section 9, challenge to the search or
the voluntariness of her consent. She argues only that the consent was a product
of the purported Article I, section 12, violation.
Cite as 

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subjective belief or intent; rather, it turns on how a reasonable person in the suspect’s position would have understood
[the] situation.” State v. Shaff, 

, 

(2007).
        Defendant primarily argues that the circumstances
were compelling in the following ways. First, the encounter
was in her probation officer Eoff’s office, and he was present.
According to defendant, a reasonable person in that position would understand that she had to answer questions
and submit to a search to avoid violating her probation.
Therefore, defendant asserts, the location and Eoff’s presence were inherently coercive. Moreover, defendant argues
that she was not free to terminate the encounter because
she was required to stay at the meeting until Eoff gave her
permission to leave. Second, defendant points to Haynes and
Humphreys’s unexpected arrival and statements confronting defendant with their knowledge of her criminal activity.
Defendant argues that that behavior was pressure that, in
combination with other factors, rendered the circumstances
compelling. We address each of the Roble-Baker factors in
turn, with particular focus on the third factor, the pressure
exerted on defendant.
         Beginning with the location of the encounter, we
generally consider familiar surroundings less compelling,
and unfamiliar surroundings more compelling. State v.
Grimm, 

, 

, rev den, 

 (2018) (noting that “the unfamiliar, police-station
setting of the interview tended—necessarily—toward a
‘police-dominated atmosphere’ ”); Shaff, 

 (“the
fact that the interview occurs in familiar surroundings
diminishes the police-dominated atmosphere that Miranda
warnings were intended to counteract”). The location of the
encounter is not dispositive; even a custodial setting may
not result in compelling circumstances where other factors
tend the other direction. See Roble-Baker, 

 (circumstances of police questioning at police station were not
compelling for first several hours, until interviewing officers engaged in coercive interrogation techniques); Grimm,

 (defendant not under compelling circumstances at outset of interview, despite location of interview
in police station).
460                                             State v. Reed

          Here, the fact that the encounter was in Eoff’s
office, likely a less than familiar setting to defendant, would
seemingly weigh in favor of a compelling circumstances
determination. However, we have not treated a probation
office as particularly compelling in our case law. In State v.
Dunlap, the defendant was on probation, and was required
to consent to searches, truthfully answer questions from his
probation officer, and submit to a polygraph test every six
months. 

, 

 (2007). After the
results of his polygraph revealed that he may have violated
his probation, the defendant’s probation officer arranged for
a meeting in his office. During the meeting, the defendant
consented to a search of his residence and his computer.
The defendant made incriminating statements during the
search. 

. Several days later, the defendant again
met with his probation officer and a police officer, who interviewed the defendant about whether he had been viewing
child pornography based on images found during the search
of his computer. The defendant made further incriminating
statements before the officers arrested him and advised him
of his Miranda rights. 

. We held that the defendant
was not in compelling circumstances before he was given
Miranda warnings. That was so, we explained, because the
police did not tell the defendant “that he would be penalized in terms of his probation status for invoking his constitutional privilege against self-incrimination.” 

. We
specifically concluded that the probation officer’s office was
not a compelling setting “notwithstanding the presence at
various times of more than one officer.” 

 Given our decision in Dunlap, the unfamiliar setting is not a significant
factor here. That is particularly true given Eoff’s lack of
involvement, and the fact that defendant was there for a
routine meeting, which we discuss later.
         With regard to the second factor, the length of the
interview, the pertinent time period is from the beginning
of the officers’ interaction with defendant to the moment
that defendant gave consent to search her car and handed
Haynes her keys. The trial court found that that initial
interaction lasted only two minutes. Although not dispositive, the short duration of the interview weighs against
concluding that the circumstances were compelling here.
Cite as 

 (2022)                                461

See State v. Northcutt, 

, 

(2011) (one and one-half hour interview in motel where the
defendant sold counterfeit purses not compelling).
         The bulk of our analysis relates to the next factor,
the pressure exerted on the defendant. Pressure exerted by
an officer “can come in the form of officers’ aggressive tone
or demeanor, contributing to a determination of compelling
circumstances. Conversely, an officer’s calm, conversational,
and nonconfrontational demeanor can sometimes weigh
against a compelling circumstances determination.” State v.
Phillips, 

, 

, rev den, 

 (2020). Or, “[o]ften, the pressure comes from the police
confronting the defendant with evidence of his or her guilt.”
Grimm, 

. What matters “is not whether
evidence of guilt was apparent to the suspect; rather, it is
whether the officers used that evidence in a coercive manner.” Shaff, 

. Thus, “simply confronting a suspect with evidence of guilt in a noncoercive manner does
not make circumstances compelling.” Phillips, 

. Instead, we have considered an officer’s use of evidence of guilt coercive where an officer has described the
evidence at length, used the evidence to repeatedly confront
a suspect with their knowledge that she is lying, or used
the evidence to confront a suspect with probable cause to
support an immediate arrest. See 

 (describing
cases where use of incriminating evidence during questioning was coercive).
         The following two cases are particularly helpful in
illustrating when an officer’s use of guilt is coercive in nature.
In Grimm, a woman reported that the defendant had “pulled
his pants down and exposed himself” while installing internet service in her home. 

. At an officer’s
request, the defendant agreed to go to the police station to
discuss the reported incident. 

 Two officers interviewed
the defendant in a meeting room near the main lobby. After
the defendant explained what had happened, the officers
told the defendant that his version of events was inconsistent with the complainant’s. Over the course of one and one-half hours, the defendant retold his story several times, each
time changing the details to more closely conform with the
462                                            State v. Reed

complainant’s version of events. After each telling, the officers confronted the defendant with inconsistencies between
his and the complainant’s accounts. The officers told the
defendant that they did not believe he was telling the truth.

. Eventually, the officers “changed tactics” by
asking the defendant whether he watched pornography and
telling him that he “had a sexual addiction problem.” 

. After urging the defendant to tell them “what really
happened,” the defendant made incriminating statements.

.
         We explained that the circumstances were not compelling at the outset of the interview when the officers “simply confronted defendant with incriminating evidence—the
complainant’s version of events—in a noncoercive and nonaggressive manner and asked defendant for his side of the
story.” 

. However, we observed that the interview
tactics became more coercive when the officers “persisted,
escalating the pressure on defendant to continue talking
at every stage by telling him that his explanations did not
make sense in light of the complainant’s statement, indicating that they did not believe him, and repeatedly asking him
to explain the inconsistences.” 

 Ultimately, we concluded
that “the circumstances had evolved into a setting in which
Miranda warnings were required” when the officers asked
the defendant intrusive questions about his sexual habits.

.
         In Phillips, an officer contacted the defendant at
her home after receiving information that she possessed a
stolen firearm. The officer approached the defendant on her
porch and told her that he had information that she had
received the firearm in exchange for drugs. The defendant
denied having drugs and invited the officer to search her
home. 

. During the search, the defendant made statements directing the officer to the location of
drugs and the firearm, which the officer found in her bedroom. 

. We concluded that the defendant was not
in compelling circumstances when the officer told her that
he had information that she had traded drugs for a firearm.

. We explained that the officer provided that information “in a noncoercive and nonaggressive manner” and
Cite as 

 (2022)                             463

did not suggest that he would arrest or detain the defendant.

 Likewise, the circumstances did not become compelling
because of the officer’s later questions about the presence
of guns and drugs in the house, or the officer’s statements
encouraging the defendant to “be honest with him,” given,
among other factors, that “he did not threaten defendant
[or] make promises of leniency.” Id. at 630-31.
         The circumstances here, during the initial two-minute interaction, are like the circumstances in Phillips
and at the outset of the interview in Grimm, when circumstances were not yet compelling. The officers requested permission to speak with defendant and maintained a conversational tone throughout the two-minute encounter. They
confronted defendant with knowledge that she was engaged
in criminal activity in a noncoercive and nonaggressive
manner. And, unlike the officers during the later questioning in Grimm, the officers here did not repeatedly confront
defendant with that evidence or contradict her denials with
the information they had received. Nor did the officers provide details about the source of the information. Instead,
they briefly and vaguely stated that they knew defendant
was selling drugs and asked her how much she had in her
possession. Given the officers’ attitude and lack of persistent
or aggressive questioning, we disagree with defendant that
the officers exerted pressure on her during the interaction.
          Defendant contends that Eoff’s presence also contributed to the pressure exerted. Specifically, defendant
argues that, when the officers asked to speak with both
defendant and Eoff together, they leveraged the pressure
inherent in the conditions of her probation that required
her to be truthful and consent to searches. As we explained
above, the fact that an interview takes place in a probation
office or in the presence of a probation officer, without more,
is not treated as compelling. Indeed, in Dunlap the probation officer participated in questioning and called meetings
in his office specifically to address criminal allegations.
Although we acknowledged that a defendant in those circumstances may feel pressure to not violate probation conditions, we did not consider that pressure particularly coercive in the absence of some indication by the officers that
464                                             State v. Reed

the defendant “would be penalized in terms of his probation
status for invoking his constitutional privilege against self-incrimination.” 

; see also Love-Faust, 

 (concluding same where probation officer did
not communicate that there would be consequences to defendant probationer for invoking privilege).

         Here, Eoff’s engagement was less than that of the
probation officer’s in Dunlap. Eoff did not participate in the
interview and arranged the meeting to discuss routine probation compliance, not to discuss the officers’ allegations.
And, as in Dunlap, the officers did not tell defendant that her
refusal to speak with them could subject her to a violation.
To be clear, we understand from Dunlap that the pressure
not to violate probation conditions may be accounted for in
determining whether and how much pressure was exerted
on a defendant. However, given the purpose of the meeting, Eoff’s nonparticipation, the lack of an express threat
or reference to defendant’s probation status, in addition to
the other factors discussed above, Eoff’s presence does not
persuade us that the officers exerted pressure on defendant.
Overall, the lack of pressure exerted by the officers during
the brief encounter weighs significantly against a determination of compelling circumstances.

         The last factor in our analysis, defendant’s ability
to terminate the encounter, weighs in favor of a compelling
circumstances determination. Here, the officers testified
that defendant was free to leave, but defendant needed permission from Eoff to end her interview. Eoff also testified
that probationers are escorted in and out of the building.
Although defendant may have been free to decline to speak
with the officers, she could not simply walk out of the meeting. Because a reasonable person in defendant’s position
would understand that, at the very least, she could not leave
until she had completed her probation compliance meeting,
the fourth factor supports a determination that compelling
circumstances existed. However, viewing that factor in
combination with other circumstances here, including the
setting, the officers’ conduct, and the length of the interaction, we agree with the trial court that the circumstances
were not compelling. Northcutt, 

 (one
Cite as 

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and one-half hour interview in motel room not compelling
under totality of the circumstances, notwithstanding the
fact that the defendant was not free to leave or terminate
the encounter).
         In sum, the circumstances of the initial interaction, viewed in their totality, did not produce “the sort of
police-dominated atmosphere that Miranda warnings
were intended to counteract.” Roble-Baker, 

.
Therefore, we conclude that the trial court did not err in
partially denying defendant’s motion to suppress her statements during the initial interaction and the evidence discovered during the search of her car.
         We turn to defendant’s second assignment of error.
She contends that the trial court’s imposition of a 68-month
sentence on Count 6 exceeded the statutory maximum sentence under ORS 161.605.2 Defendant acknowledges that
she did not preserve an objection to the sentence and seeks
plain-error review. The state concedes the error but argues
that we should decline to exercise our discretion to consider it
because correction of the sentence “would not have the potential to improve defendant’s position.” State v. Powell, 

, 

 (2012), rev den, 

 (2013).
That is so, the state argues, because the 68-month sentence
on Count 6 was imposed concurrently with 68-month sentences on Count 4 and Count 5. Accordingly, a reduction in
defendant’s sentence on Count 6 would not reduce the length
of her overall sentence. Because the judgment reflects that
the court imposed the same sentence on Counts 4, 5, and
6, including prison-term length, credit for time served, and
other reduction-in-sentence programming, we agree with
the state. We therefore decline to exercise our discretion to
consider defendant’s second assignment of error.
          Because we reject each of defendant’s assignments
of error, we affirm the judgment of conviction in Case No.
19CR12088. As a result, we also affirm the judgment revoking defendant’s probation in Case No. 18CR64481.
          Affirmed.
    2
      On Count 6, defendant was convicted of a Class C felony. ORS 161.605(3)
provides that the maximum term of imprisonment for a Class C felony is five
years, or 60 months.
466                                              State v. Reed

        ORTEGA, P. J., concurring.

          I do not dispute that the majority’s application of
State v. Dunlap, 

, 

 (2007), which
I authored and which defendant has not asked us to overrule, is correct and compels the outcome here. We generally
“begin with the assumption that issues considered in our
prior cases are correctly decided, and [that] the party seeking to change a precedent must assume responsibility for
affirmatively persuading us that we should abandon that
precedent.” Farmers Ins. Co. v. Mowry, 

,

 (2011) (internal quotation marks omitted); Beall
Transport Equipment Co. v. Southern Pacific, 

, 700 n 2, 

, adh’d to on recons, 

, 

 (2003) (stating that it is not our “proper function to make or develop a party’s argument”). Nevertheless,
I write separately to address what I now believe to be flaws
in the legal reasoning underlying Dunlap’s holding.

          In that case, the defendant was on probation following convictions for, among other charges, encouraging child
sexual abuse, and he was required to comply with the conditions of the “sex offender package,” including that he consent
to searches “of his person, vehicle, and property without a
warrant” if his probation officer had “a reasonable ground
to believe that the search would disclose evidence of a violation,” truthfully answer questions from his probation officer,
and submit to a polygraph test every six months. Dunlap,

. Following a polygraph examination where
the defendant admitted to viewing adult and child pornography, his probation officer summoned the defendant to
his office. The defendant complied, and his probation officer, with another officer “standing nearby,” questioned him
about the details of his pornography viewing. The defendant
made admissions, and, at one point, both officers left the
defendant in the office to “run a computer search.” After
they returned, the probation officer obtained the defendant’s
consent to search his computer and home for pornography.
The defendant, the probation officer, a second parole and
probation officer, and an office intern drove with the defendant in a county car to his home, where they were met by a
police officer. After the defendant signed a consent form, the
Cite as 

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probation officer seized the hard drive of his computer and
transferred it to the police officer, who took it to the police
department for examination. Id. at 49.
         Following a search of the hard drive, a police officer
informed the defendant’s probation officer that child pornography was found on it. Id. at 50. As a result, the probation
officer and the police officer again met with the defendant.
In that meeting, both the probation officer and the police
officer questioned the defendant about whether he had been
viewing child pornography, and he made incriminating
statements. The officer eventually read the defendant his
Miranda rights, and he was arrested. Id.
        In the appeal of his conviction, the defendant
argued that the trial court had erred in denying his motion
to suppress, because his consent to the warrantless searches
was involuntary under Article I, section 9, and his Miranda
rights were violated when his probation officer and the
law enforcement officers questioned him under compelling
circumstances before providing Miranda warnings. Id. at
52, 55.
         With regard to his Article I, section 9, challenge,
the defendant argued that his consent to the search was
involuntary, because the record showed that he believed the
search was inevitable and that he was subject to a probation
sanction and also immediate arrest and incarceration if he
did not consent. Id. at 52. The state disagreed, noting that,
“although the probation officer informed defendant that, if
he did not consent, he would probably go to jail, … that
threat reasonably should have been understood to mean
that he would be taken into custody for the purposes of probation violation proceedings,” because, under Minnesota v.
Murphy, 

, 

, 

 (1984),
his probation could not lawfully be revoked for the assertion of a constitutional right. Dunlap, 

. We
agreed with the state, explaining that, although the defendant emphasized “what he describes as his reasonable belief
that he would immediately be arrested if he declined to consent,” under State v. Davis, 

, 

,
rev den, 

 (1995), the “ ‘pressure’ not to violate the
conditions of his probation … was not sufficient” coercion
468                                                    State v. Reed

to render his consent involuntary under Article I, section 9.
Dunlap, 

; see also 

 (“In determining
whether a probationer who was subject to a condition of probation that required him to submit to a search voluntarily
consented to a search, we consider whether the probationer
was effectively denied a reasonable opportunity to refuse the
search or whether the environment was sufficiently coercive
to preclude him from doing so.”).
         We then turned to the defendant’s Article I, section 12, argument and, with minimal analysis, concluded
that “the circumstances in which defendant made his preMiranda statements were not sufficiently compelling to violate Article I, section 12.” 

. We stated:
      “In particular, nothing in the record indicates that the
      police told defendant that he would be penalized in terms
      of his probation status for invoking his constitutional privilege against self-incrimination. Nor were any of the settings, including [the probation officer’s] office and defendant’s apartment, in which he was questioned compelling,
      notwithstanding the presence at various times of more
      than one officer.”

         I do not find fault with the majority’s application
of Dunlap to the facts of this case. In Dunlap, the probation officer initiated the investigation after learning that
the defendant could be in violation of his probation conditions and collaborated with a criminal investigation based
on that same conduct, effectively exercising a degree of control over the defendant’s involvement in both investigations.
And, because “nothing in the record indicate[d] that the
police told defendant that he would be penalized in terms
of his probation status for invoking his constitutional privilege against self-incrimination,” we concluded that Miranda
warnings were not required. 

 Here, Eoff was not involved
in the officers’ criminal investigation of defendant as was
the probation officer in Dunlap, and the police also did not
expressly communicate that, if defendant did not cooperate
with the investigation, she could be penalized in terms of
her probation status. It follows that Dunlap compels our conclusion that Eoff’s presence, when considered along with the
Cite as 

 (2022)                                               469

other factors outlined in State v. Roble-Baker, 

, 

 (2006), and the totality of the circumstances, did not create sufficiently compelling circumstances
under Article I, section 12, requiring Miranda warnings.
         Defendant, perhaps because she understands that
it ultimately controls the outcome here, does not attempt to
distinguish Dunlap in her briefing. Nonetheless, defendant’s
arguments account for the reality of the circumstances at
issue in this case in a way that we failed to acknowledge in
Dunlap. That is, where two police officers interrupt a probationer’s meeting with her probation officer, state that they
are there for the purpose of talking to both the probation officer and the defendant, proceed to question her in front of the
probation officer, and then confront her with evidence that
she sold drugs that same day and is currently in possession
of drugs—all conduct that would also violate her probation
conditions—it makes sense that the probationer would have
understood, whether the words are spoken or not, that she
could be found in violation of her probation if she asserted
her constitutional rights not to cooperate with the investigation. Defendant’s arguments point to flaws in the legal
reasoning articulated in Dunlap, and it feels important for
us to engage those flaws.
         To begin, Dunlap’s focus on what the state actors
expressly communicated to the defendant regarding his probation status1 was too limited. Although what is expressly
communicated is relevant to what a reasonable probationer
would understand about the risks to her probation status if
she fails to cooperate with an investigation, other evidence,
including what a state actor implicitly communicates by
words or conduct, is also relevant to that inquiry. See State
v. Tenbusch, 

, 

 (1994),
rev den, 

, cert den, 

, 

, 

 (1995) (“ ‘[I]f the State, either expressly or by
implication, asserts that invocation of the privilege [against

    1
      See, e.g., State v. Love-Faust, 

, 

, adh’d to as
modified on recons, 

, 

 (2021) (citing Dunlap in support of the conclusion that the circumstances were not sufficiently compelling to
require Miranda warnings, in part, because the probation officer “did not communicate that there would be consequences to defendant’s probation status if he
invoked his constitutional privilege against self-incrimination”).
470                                               State v. Reed

self-incrimination] would lead to revocation of probation, it
would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.’ ” (Quoting Murphy, 

 (emphasis added; other emphasis in Murphy omitted).));
see also State v. Backstrand, 

, 

 (2013) (for purposes of determining whether a reasonable person would believe she was seized under Article I,
section 9, “[e]xplicitly or implicitly, an officer must convey to
the person with whom he is dealing, either by word, action,
or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs”).
Because we failed to account for the impact of a state actor’s
implicit communications on what a defendant understands,
our analysis in Dunlap was incomplete and, consequently,
legally flawed.
          Moreover, our focus on the omission of an express
threat led us to minimize the ways in which the state actors
might have implicitly communicated the equivalent of a
threat to the defendant’s probation status if he had asserted
his constitutional rights to cooperate with the investigation.
For example, in Dunlap, the state acknowledged that the
defendant’s “probation officer informed defendant that, if
he did not consent [to the search], he would probably go to
jail.” 

. In concluding that that threat was
not sufficiently coercive to impact the voluntariness of the
defendant’s consent under Article I, section 9, we interpreted
that threat as consistent with the probation officer exerting
pressure on the defendant not to violate the conditions of
probation. 

 (so expressing). Yet, the comment could
also be read as a threat that, if the defendant asserted his
constitutional right to not consent to a warrantless search,
he could be sanctioned for violating his probation, thus compelling his cooperation. Even if that threat, which expressly
mentioned jail and did not expressly mention a probation
sanction, is more properly viewed as ambiguous, we nevertheless failed to engage the possibility that an implicit communication of a threat could impact the voluntariness of the
defendant’s consent or whether compelling circumstances
existed.
Cite as 

 (2022)                              471

           Finally, our analysis in Dunlap failed to appreciate
the realities of how a reasonable probationer in the defendant’s circumstances “would have understood his or her situation.” State v. Shaff, 

, 

(2007). As we have recognized, the issue for purposes of
determining whether circumstances were sufficiently compelling to require Miranda warnings is “how a reasonable
person in [the] defendant’s position would have understood
the circumstances of his questioning.” State v. Breazile, 

, 

 (2003) (emphasis in original).
See also 

 (noting that the defendant’s status as a prisoner
and his understanding of the rules governing that status
are relevant to that determination). Our analysis in Dunlap,
which focused on the omission of an express threat related
to the defendant’s probation status, the number of officers
present, and the settings in which the defendant was questioned, failed to consider the range of ways in which a reasonable probationer in the defendant’s situation might have
felt compelled to cooperate with his probation officer and the
law enforcement officers, given his status as a probationer.
See Breazile, 

 (concluding that circumstances were sufficiently compelling to require Miranda
warnings following the discovery of drugs on the defendant’s
property during his incarceration, where he was questioned
by three correctional officers “concern[ing] an administrative violation involving possible criminal conduct,” and the
defendant could have been administratively sanctioned if he
had refused to report to the location in the jail where the
officers questioned him); State v. Goree, 

,

 (1997), rev den, 

 (1998) (“[T]he focus
is … on the extent to which the particular circumstances of
the questioning create an environment in which the suspect
reasonably will feel compelled to answer the questions of the
police.” (Emphasis omitted.)). The facts of Dunlap implicate
similar concerns, with which we did not sufficiently engage,
including the degree of the probation officer’s involvement
in the criminal investigation while simultaneously, based
on the same evidence, conducting the probation-violation
investigation, and also what a reasonable probationer
would typically understand about the rules governing his
status.
472                                            State v. Reed

        We will typically overrule a prior opinion only upon
request, Farmers Ins. Co., 

, and no such request
has been made here. While I concur in the disposition under
existing case law, I write to encourage us to engage more
completely in future cases with the realities faced by defendants in circumstances such as these.