705
Argued and submitted August 5, 2020; reversed and remanded July 13, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CURTIS CLINT WILLIAMS,
aka Clint Curtis Williams,
aka Curtis Clinton Williams,
Defendant-Appellant.
Multnomah County Circuit Court
17CR37474; A168472
514 P3d 501
Defendant appeals from a judgment of conviction for rape in the first degree,
two counts of sodomy in the first degree, unlawful sexual penetration in the first
degree, and three counts of sexual abuse in the first degree, asserting five assignments of error. In his first assignment of error, defendant contends that his consent to a buccal (oral) swab collection of his DNA was the product of the prior police
violations of his rights to remain silent and to counsel under Article I, section 12,
of the Oregon Constitution, and he argues that that DNA evidence should have
been suppressed under State v. Jarnagin, 351 Or 703, 716,
277 P3d 535 (2012).
Specifically, defendant asserts that the violations were flagrant, that he was continuously in custody and that there was no break in time or place between the
violations and his consent, that the consent form that he signed did not remove
the taint of the violations, and that the detectives used his unwarned statements
to wear down his resistance and persuade him to consent to the buccal swabs.
Held: Considering the first three Jarnagin factors, the Court of Appeals concluded that those factors all favored the conclusion that defendant’s consent to
the buccal swabs derived from the detectives’ earlier violations of defendant’s
rights. Although the fourth and fifth Jarnagin factors presented more nuanced
issues, ultimately, when applying all of the Jarnagin factors to the totality of the
circumstances, the court concluded that the state did not meet its burden to show
that defendant’s decision to give his DNA was not the product of the detectives’
earlier violation of defendant’s rights. Therefore, the trial court erred when it
denied defendant’s motion to suppress the DNA evidence. That error was not
harmless.
Reversed and remanded.
Kathleen M. Dailey, Judge.
Rond Chananudech, 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.
706 State v. Williams
Doug M. Petrina, 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.
SHORR, J.
Reversed and remanded.
Powers, J., dissenting.
Cite as 320 Or App 705 (2022) 707
SHORR, J.
Defendant appeals from a judgment of conviction
for rape in the first degree (Count 1), two counts of sodomy
in the first degree (Counts 2 and 3), unlawful sexual penetration in the first degree (Count 4), and three counts of
sexual abuse in the first degree (Counts 6, 7, and 8), asserting five assignments of error. We reject without further discussion defendant’s second assignment of error. In his first
assignment of error, defendant contends that his consent to
an oral or buccal swab collection of his DNA was the product
of the police’s prior violations of his rights to remain silent
and to counsel under Article I, section 12, of the Oregon
Constitution. We conclude that the trial court erred when it
denied defendant’s motion to suppress that DNA evidence,
because, as we explain below, the state failed to meet its
burden to demonstrate that defendant’s consent attenuated
the taint of the earlier Miranda violations. We also conclude
that that error was not harmless. As a result, we reverse and
remand the judgment. That disposition obviates the need to
address defendant’s remaining assignments of error.1
In reviewing the denial of defendant’s motion to
suppress, we review the trial court’s decision for legal error
and are bound by the trial court’s express factual findings
if evidence in the record supports them. State v. Mast, 301
Or App 809, 810,
459 P3d 938 (2020). We begin by reviewing
the undisputed facts.
In 1986, defendant was convicted of first-degree
rape. Defendant’s DNA was collected and stored in the
1
In his third assignment of error, defendant assigns error to an aspect of his
sentencing. Because we reverse and remand the judgment on all counts, we need
not reach that assignment of error. In his fourth and fifth assignments of error,
defendant contends that the trial court plainly erred in instructing the jury that
it could reach nonunanimous verdicts and in accepting a nonunanimous verdict
on Count 1. The state concedes that the trial court erred in its instruction and in
accepting a nonunanimous verdict on Count 1, but argues that the court’s acceptance of unanimous verdicts on the other counts rendered any instructional error
harmless as to the remaining counts. We accept the state’s partial concession. We
note, however, that, if this case is retried, the trial court will instruct the jury on
unanimous verdicts consistently with the law that has developed since the initial
trial. See Ramos v. Louisiana, 590 US ___, ___,
140 S Ct 1390, 1397,
206 L Ed 2d
583 (2020); State v. Ulery,
366 Or 500, 501,
464 P3d 1123 (2020) (“Ramos leaves no
doubt that our state’s acceptance of nonunanimous guilty verdicts must change
….”).
708 State v. Williams
Combined DNA Index System (CODIS). Further, because of
that conviction, defendant is required to register as a sex
offender on an annual basis.
In 2011, L, the complaining witness in this case,
reported to police that she had been raped, and a sexual-assault nurse collected a sexual-assault kit. That 2011 kit
was first tested in 2016 as part of a project to test a backlog of untested sexual-assault kits. Forensic testing showed
that defendant’s DNA stored in CODIS matched the DNA
found on evidentiary swabs that had been taken from L’s
body and stored in the 2011 kit. In December 2016, Detective
Christensen with the Portland Police Bureau reopened the
2011 case at issue here.
Christensen understood that the state needed to
obtain an additional DNA sample from defendant to confirm that the DNA that the state had on file for defendant
was in fact a match with defendant’s DNA. Christensen
also learned that defendant had failed to register as a sex
offender for the prior two years. Christensen was aware that
defendant’s failure to register was a means by which to contact defendant.
In February 2017, police arrested defendant for failure to register as a sex offender and took him to the Central
Precinct. The detectives on the case intended from the outset to obtain defendant’s DNA through either defendant’s
voluntary consent or a search warrant. Christensen and
another detective, Myers, took defendant to an interview
room to question him. The detectives failed to give defendant any Miranda warnings. Despite that, the detectives
questioned defendant for nine minutes. The interrogation,
which was recorded, primarily focused on completing a sex
offender registration form that required administrative
information and defendant’s signature. Defendant initially
answered those questions relating to his administrative
information, but after being asked if he knew his State
Identification Number, defendant stated, “I’m not giving you
no more information.” Defendant then told the detectives, “I
don’t want to talk anymore.” Christenson sought to clarify
and asked, “you’re saying you don’t want to talk about anything?” Defendant responded, “No. I don’t want to talk about
Cite as 320 Or App 705 (2022) 709
anything. Just lock me in the room over there. … I don’t
want to talk about nothing.”
Rather than ceasing questioning and ending the
interrogation at that point, Christensen told defendant that
he would give him a break to rest, but that he “needed” to
talk to defendant about a 2011 case:
“[CHRISTENSEN]: Do you want to take a little break
for a little bit?
“[DEFENDANT]: I just want to lay down and go to
sleep. I’m tired.
“[CHRISTENSEN]: Okay. Because there’s another
case I need to talk to you about, so I’ll—
“[DEFENDANT]: What case?
“[CHRISTENSEN]: Well, you—you say you don’t want
to talk, so I’ll give you a little break and let you—
“[DEFENDANT]: Well, I—I—
“…
“[DEFENDANT]: If—if I’m being charged, then you
charge me. If not, I don’t want to talk to you about nothing
unless you give me an attorney. Am I being charged with a
case? Am I being charged?
“[CHRISTENSEN]: You’re not being charged with
anything.
“[DEFENDANT]: Well, then you—
“[CHRISTENSEN]: Other than the fail[ure] to register as a sex offender …—
“…
“[CHRISTENSEN]: You’re being charged for those
two things, but there’s another case from 2011 that I need
to talk to you about.”
The interrogation continued as the detectives raised questions about the 2011 case but told defendant that he was
not being charged in that case. Defendant again said, “I
don’t want to talk to you, period. No, I don’t want to talk
to you about nothing now, sir.” The trial court found that
710 State v. Williams
defendant “became verbally and physically agitated” during
the interrogation.
The detectives then returned to the topic of the
sex offender registration form, which defendant had not yet
signed. The detectives explained that, regardless of whether
he signed the registration form, he was being booked overnight because of his failure to register as a sex offender.
After defendant eventually agreed to sign the form, Myers
repeated the detectives’ request that they talk to him about
the 2011 case, stating that “if it was something consensual,
that’s one thing, or if you’re just a horrible rapist … then
you probably shouldn’t talk to us, but he’s just trying to clear
something up.” Defendant denied any wrongdoing and said,
“I don’t even know what you’re talking about. I don’t want to
talk to you about nothing. I already said that. If you gonna
charge me, charge me, then get me a lawyer, period.” As
Christensen attempted to end the interrogation and shut
off the recorder, Myers continued to talk to defendant about
how Christensen would proceed with the 2011 investigation
without defendant’s input.
The detectives then took defendant to a holding cell
that was just down the hallway and “very close” to the interview room. Although all of the discussions in the interview
room were recorded, the four-minute discussion in the hallway and in the holding cell was not. Christensen testified
regarding what occurred during that period. He testified
that, as he walked defendant down the hallway towards the
holding cell, he discussed the process for obtaining DNA
swabs without defendant’s consent and described the next
steps in the process. When defendant was in the holding
cell, Christensen explained to defendant that to follow up
on the 2011 case he needed to get confirmatory DNA swabs
from defendant, that he would seek a warrant to obtain
those swabs, and that it would take four to five hours to
get the warrant. Defendant said, “Now hold on. My DNA’s
already in the system,” referring to DNA collected and
stored following his prior conviction. Christensen explained
that the crime lab needed confirmatory swabs, and defendant said that he would consent to a DNA sample but that
he did not want to speak to anyone. Defendant said, “Well,
Cite as 320 Or App 705 (2022) 711
I’ll do that. I just don’t want to talk to anybody.” Defendant
and the detectives then returned to the interview room, four
minutes after they had left it. The trial court found that
defendant’s “demeanor was no longer agitated after being
brought back into the interview for the oral swabs.”
Back in the interview room, Christensen explained
to defendant that confirmatory swabs were needed because
there was no one available to come into court to say that
defendant’s original DNA sample in CODIS actually came
from defendant. Christensen, however, also suggested to
defendant that the request for consent for defendant’s DNA
was nothing “new,” and assured him twice that the process
was “merely a formality.” Along those lines, Christensen
explained to defendant:
“[CHRISTENSEN]: I know your DNA’s already in the
system.
“[DEFENDANT]: Yeah.
“[CHRISTENSEN]: But this is a—just a requirement
for the lab.
“[DEFENDANT]: It has nothing to do with—
“[CHRISTENSEN]: I’m not going to ask you any
questions.
“[DEFENDANT]: —sexual predator DNA thing that
come out or this is something new, the—
“[CHRISTENSEN]: No.
“[DEFENDANT]: It’s extra?
“[CHRISTENSEN]: No. This is the same. Your DNA is
already in the system. This is confirmatory swabs just to
show, yes, it is [you] that is in the system, and that’s it. It’s
no other trickery. It’s merely a formality.
“[DEFENDANT]: It don’t make no sense. It’s just—
“[CHRISTENSEN]: It doesn’t.
“[DEFENDANT]: If you already got it, why you want
some more?
“[CHRISTENSEN]: I will explain. Because when you
went into jail before and someone swabbed you,—
712 State v. Williams
“[DEFENDANT]: Uh-huh (affirmative response).
“[CHRISTENSEN]: —that person that swabbed you
isn’t available for court and isn’t there to say these swabs
came from [you].”
As noted, Christensen later reassured defendant again that
the confirmatory swabs were “merely a formality.”
Detectives provided defendant with a consent form,
which provided, in part, “You may refuse to consent to a
search and may demand that a search warrant be obtained
prior to any search of the premises described below,” and
“I hereby authorize these officers to seize any article which
they consider to be of value as evidence.” The form did not
advise defendant, who had still not received Miranda warnings, of defendant’s right to counsel.
Christensen made two modifications to the form:
first, changing the scope of consent from “premises” to “person,” and second, changing the phrase “any article” to “oral
swabs.” Christensen also filled out the form to specify that
defendant consented to four oral swabs. In reviewing the
form, defendant adopted those modifications. As he reviewed
the consent form, defendant explained, “I have no problem
with that because I don’t give a damn. If I fought it all the
way, I’d still go—have to give them up down the road somewhere.” Defendant signed the consent form and proceeded
to self-administer four oral or buccal DNA swabs. That signature occurred within minutes of defendant’s return to the
interview room.
After collecting the buccal swabs, defendant again
confirmed that he consented to the swabs rather than providing them pursuant to a warrant, saying, “Same thing,
man. I ain’t got nothing to hide. Even though I don’t trust
you, what can I do?” Christensen asked if defendant was
under the influence of drugs or alcohol, and defendant said
that he had consumed “a little bit of alcohol” but not enough
to inebriate him.
In June 2017, defendant was indicted on one count
of first-degree rape (Count 1), two counts of first-degree
sodomy (Counts 2 and 3), two counts of first-degree unlawful sexual penetration (Counts 4 and 5), three counts of
Cite as 320 Or App 705 (2022) 713
first-degree sexual abuse (Counts 6, 7, and 8), and one count
of coercion (Count 9) arising out of the 2011 incident. Before
trial, defendant moved to suppress both his statements
and the newly obtained DNA evidence, arguing that police
obtained the evidence after violating his Miranda rights
during the February 2017 interrogation and that his consent
to give the buccal swabs was not voluntary. Although the
state conceded that it would not seek to admit any portion
of defendant’s statements from that interrogation, the state
asserted that defendant’s consent to the buccal swabs was
not the product of any Miranda violation. At the suppression
hearing, the trial court heard testimony from Christensen
as well as Detective Hahn, who had arrested defendant.
The court also received into evidence a video recording of
the first interrogation and an audio recording of the second
interrogation and buccal swab collection. In an extensive letter opinion, the trial court made factual findings consistent
with the foregoing recitation and denied defendant’s motion
to suppress, reasoning that the challenged DNA evidence
did not derive from the earlier Miranda violations and that
defendant voluntarily consented to the buccal swabs.
The case proceeded to a jury trial. At trial, among
the evidence before the jury, the state introduced and relied
upon DNA evidence derived from the challenged buccal
swabs as well as evidence from defendant’s 1980s DNA
sample. No witness testified that they had direct knowledge that defendant had in fact provided the 1980s DNA
sample. Rather, a witness from the Oregon State Police
crime lab explained to the jury that the state used the four
oral swabs collected by the Portland police from defendant
in 2017 to confirm that they had a correct match between
defendant’s DNA and the 1980s DNA sample in CODIS.
Ultimately, the jury acquitted defendant of one charge and
found defendant guilty of first-degree rape, ORS 163.375,
two counts of first-degree sodomy, ORS 163.405, one count of
first-degree unlawful sexual penetration, ORS 163.411, and
three counts of first-degree sexual abuse, ORS 163.427. This
timely appeal followed.
On appeal, defendant first assigns error to the trial
court’s denial of his motion to suppress, arguing that the
714 State v. Williams
detectives’ Miranda violations were egregious and continuous such that they tainted his consent to provide the buccal
swabs. The state remonstrates that the trial court did not
err, because defendant’s consent to the buccal swabs was not
the product of the Article I, section 12, violation, and that,
in any event, any error was harmless because the oral-swab
evidence was cumulative and consistent with defendant’s
theory of the case.
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, law enforcement officers must,
before questioning, give Miranda warnings to a person who
is in custody or compelling circumstances. State v. Jarnagin,
351 Or 703, 713,
277 P3d 535 (2012). When an officer fails to
give the requisite Miranda warnings, we suppress the statements that a suspect makes in direct response to unwarned
questioning and any evidence, including physical evidence,
that derives from or is a product of that constitutional violation. State v. Vondehn,
348 Or 462, 475-76,
236 P3d 691 (2010).
Here, there is no dispute that defendant was in custody and that his rights under Article I, section 12, were
violated when detectives questioned him without providing
Miranda warnings, and then repeatedly disregarded his
invocations of his right to counsel and his unambiguous
assertions of his right to remain silent. The issue before us
is whether, under the totality of the circumstances, the DNA
evidence obtained from the buccal swabs derived from those
violations or whether defendant’s consent attenuated the
taint of those violations.
To determine whether evidence derived from or
was the product of an earlier Miranda violation, we look
at the totality of the circumstances. Jarnagin, 351 Or at
716. We apply the same analysis regardless of whether the
challenged evidence is testimonial, or, as presented in this
case, physical. Vondehn,
348 Or at 475-76. When assessing
whether evidence derived from an earlier Miranda violation,
we consider, among other factors,
“the nature of the violation, the amount of time between
the violation and any later statements, whether the suspect
Cite as
320 Or App 705 (2022) 715
remained in custody before making any later statements,
subsequent events that may have dissipated the taint of
the earlier violation, and the use that the state has made of
the unwarned statements.”
Jarnagin,
351 Or at 716. The state bears the burden of production and persuasion to show that defendant’s decision to
give his DNA was not the product of the detective’s earlier
violation of defendant’s right against self-incrimination and
the derivative right to counsel under Article I, section 12.
See State v. Swan,
363 Or 121, 133,
420 P3d 9 (2018).
Even when a Miranda violation has occurred, a
defendant’s voluntary consent can attenuate the prior violation if the consent was either “not affected by or was only
tenuously connected to a prior illegality.” State v. Delong,
357 Or 365, 378,
350 P3d 433 (2015); see also State v. Unger,
356 Or 59, 85-87,
333 P3d 1009 (2014) (analyzing when a
defendant’s voluntary consent can attenuate a prior violation of Article I, section 9, of the Oregon Constitution). To
determine if a defendant’s voluntary consent was “sufficient to break the causal chain,” we consider a subset of the
Jarnagin factors, as described in Unger: the nature of the
violation, the character of the defendant’s consent, and the
causal connection between the violation and the defendant’s
consent. Delong,
357 Or at 378 & n 13 (“The factors that the
court identified in Unger are a subset of the factors that the
court identified in … Jarnagin.”).
Defendant argues that all five Jarnagin factors
indicate that his consent derived from the Miranda violations, and therefore, that the trial court erred in denying
his motion to suppress. Defendant asserts that the violations were flagrant, that he was continuously in custody
and that there was no break in time or place between the
violations and his consent, that the consent form that he
signed did not remove the taint of the violations, and that
the detectives used his unwarned statements to wear down
his resistance and persuade him to consent to the buccal
swabs. As we discuss below, we agree with defendant on the
first three factors, which all favor the conclusion that defendant’s consent to the buccal swabs derived from the detectives’ earlier violations of defendant’s rights. The fourth and
716 State v. Williams
fifth factors present more nuanced issues that we discuss
below. Ultimately, when applying all of the Jarnagin factors
to the totality of the circumstances here, we conclude that
the state did not meet its burden to show that defendant’s
decision to give his DNA was not the product of the detectives’ earlier violation of defendant’s rights under Article I,
section 12. See Swan, 363 Or at 133.
We begin with the nature of the violations and
readily conclude that, contrary to the state’s view, the violations were flagrant. As an initial matter, the state does not
dispute that the detectives violated defendant’s Article I,
section 12, rights when they questioned him without giving
him Miranda warnings and continued to question him even
after he invoked his rights. Whether those violations were
flagrant is relevant to the analysis because “unlawful and
lengthy in-custody interrogation … is more likely to affect
the defendant’s decision to consent than more restrained
behavior.” Unger, 356 Or at 82.
Defendant was in full custody when the detectives
failed to Mirandize him, and the detectives repeatedly continued to question defendant after he invoked his rights to
silence and to an attorney—at least four times. In a case
that was decided after this case was taken under advisement, the Oregon Supreme Court explained that a Miranda
violation should be classified as nonflagrant only when the
violation occurred in a situation where officers failed to recognize that the circumstances were sufficiently compelling
to require Miranda warnings. State v. Ward, 367 Or 188,
201 n 9,
475 P3d 420 (2020) (citing Swan,
363 Or at 133).
Here, by contrast, there was no question that defendant was
in full custody, which clearly required Miranda warnings,
or that detectives failed to give those warnings and further
failed to stop questioning after defendant’s multiple invocations of his constitutional rights. Accordingly, we conclude
that the violations were flagrant.
Turning to the second Jarnagin factor, we conclude that the amount of time between the violation and
defendant’s consent to the buccal swabs—if any meaningful amount of time passed between the two events at all—
also supports suppression. See 351 Or at 716. The initial
Cite as
320 Or App 705 (2022) 717
interrogation began without Miranda warnings, and, as
the interrogation continued, the police ignored defendant’s
invocations of his Article I, section 12, rights to counsel and
to remain silent multiple times. Christensen and defendant
then moved into the hallway, where Christensen raised the
subject of obtaining defendant’s DNA sample. They spent
four minutes in the hallway and in the holding cell, and,
during that time, Christensen told defendant that he would
be seeking a warrant to obtain defendant’s DNA sample, at
which time defendant verbally consented to provide a DNA
sample. They then returned to the interview room where
defendant signed a written consent.
That four-minute period was not a meaningful
amount of time between the officers’ unlawful conduct and
defendant’s consent. The very topic that was central to the
officers’ unlawful conduct—investigating defendant’s purported involvement in the 2011 rape—never stopped after
Christensen and defendant exited the interview room:
In the hallway, before they even reached the holding cell,
Christensen broached the topic of obtaining defendant’s
DNA, and that discussion continued when they went into the
holding cell, where defendant first consented to the buccal
swabs, at which time they returned to the interview room,
where defendant reaffirmed his consent in writing. In other
words, defendant’s consent was obtained immediately after
the officer’s unlawful direct questioning had stopped. See
Unger, 356 Or at 90 (concluding that the temporal proximity factor weighed in the defendant’s favor where there was
“no indication that any significant amount of time elapsed
between the detectives’ initial entry onto defendant’s property and defendant’s subsequent consent,” and that “[b]oth
of defendant’s consents occurred during or shortly after the
detectives’ unlawful conduct”).
As in Swan, the time between the prior illegality
and defendant’s decision to consent “blended into a continuum.” 363 Or at 132 (internal quotation marks omitted). In
Swan, “there was no break in time, place, or custody between
the officer’s repeated Article I, section 12, violation and
defendant’s decision” to consent to a physical breath test.
Id.
The circumstances are similar here. There was no material
718 State v. Williams
temporal break, or change in circumstances, between the
violations and defendant’s consent. While there was a temporary change of scene, that change is not meaningful here,
as defendant was merely moved from an interview room
through a hallway to a holding cell that was “very close” by,
and then, less than five minutes later, returned back down
the hallway to the same interview room.
The third Jarnagin factor—whether the suspect
remained in custody—also supports suppression. See 351 Or
at 716. There is no dispute that defendant was continuously
in custody; he was in custody while the Miranda violations
occurred, when he initially told detectives that he would
consent to a DNA sample, when he reviewed the consent
form, and when he self-administered the buccal swabs.
We turn to the fourth Jarnagin factor, namely
whether “subsequent events … may have dissipated the
taint of the earlier violation.” 351 Or at 716. Because the
significant subsequent event at issue here was defendant’s
consent to the buccal swabs, we also turn to the Unger factors that apply where the state contends that a defendant’s
consent broke the causal chain, namely the nature of the
violation, which we have discussed, “the character of the
consent,” and “the causal relationship between” the violation and defendant’s consent. Unger,
356 Or at 78. “[A] voluntary consent to search that is prompted by an officer’s
request can be sufficient to demonstrate that the consent is
unrelated or only tenuously related to the prior illegal police
conduct.”
Id. at 79. But “[v]oluntary consent, while important, is not dispositive,” and the inquiry requires the court to
undertake a fact-specific exploitation analysis based on the
totality of circumstances.
Id.
We acknowledge that defendant gave oral and written consent to provide his DNA evidence. Further, the trial
court found that “defendant’s decision to consent to the oral
swabs was his own voluntary decision.”2 The court also found
2
We understand the trial court’s finding “that defendant’s decision to consent to the oral DNA swabs was his own voluntary decision,” as well as similar
findings in its opinion, to be findings of fact that defendant’s consent was essentially a “volitional act.” See Delong, 357 Or at 376 (noting distinction between
a finding of a volitional act and a legal determination of voluntariness under
Miranda). The trial court also later concluded that “the Court will not suppress
Cite as
320 Or App 705 (2022) 719
that defendant was informed of the choice of waiting for a
warrant, that defendant indicated that he wanted to proceed
with a consensual swab, that defendant was given a written
consent form that he appeared to read, that the detective
made changes to that form to confirm that the purpose of
the consent was for DNA swabs only, and that the detectives
“clearly explained what the oral DNA swabs were, and their
purpose.”3 The court further found that defendant was no
longer agitated when he returned to the interview room to
sign the written consent. Christensen also accurately told
defendant at one point that they needed a new DNA sample
because the state did not have anyone to come into court to
confirm his original DNA sample.
Those facts indicate defendant had some understanding of the nature and significance of his consent to
the procedure. However, there are other facts that undercut
the legal conclusion that the effect of the earlier Miranda
violations had dissipated. Significantly, when defendant
expressed confusion about why the detectives would need an
additional DNA sample—noting that the state had already
obtained his DNA—and further asked whether this related
to something “new” or was “extra,” Christensen twice downplayed the test as “merely a formality” and gave a misleading response. The detective responded:
“This is the same. Your DNA is already in the system. This
is confirmatory swabs just to show, yes, it is [you] that is in
the evidence under Article I, section 9, … because the Court finds the consent
was voluntary.” It appears that latter reference, despite the use of the word
“finds,” may be a legal conclusion made following the application of a legal test.
Regardless, we credit the trial court’s factual findings of voluntariness, as there
is evidence in the record to support those findings. See Mast, 301 Or App at 810.
To the extent that the trial court was making a legal conclusion, we reach a different conclusion based on our legal-error standard of review. See
id.
3
To the extent that the trial court’s finding was meant only to state that the
police clearly explained the nature of DNA swabs and their purpose, that finding is supported by the evidence. To the extent that that finding was meant to
suggest that the police clearly and completely explained why they needed a new
sample of defendant’s DNA, we conclude that that finding is not supported by the
evidence. As we noted above, Christensen did at one point provide an explanation that the state needed defendant’s DNA because there was no one available
to come into court to testify that the original DNA sample in CODIS came from
defendant. However, as we discuss further below, Christensen at the same time
misled defendant by stating that the sample was not “new” and repeatedly downplayed it as just a “formality,” which was not the case.
720 State v. Williams
the system, and that’s it. It’s no other trickery. It’s merely
a formality.”
That was only partially true, because while it related to
defendant’s earlier DNA sample, the detective’s underlying
goal throughout was to obtain new swabs to confirm defendant’s identity as the suspect in the new 2011 investigation.
Defendant consented after he was initially confused
by the need for and purpose of the buccal swabs and after he
was misleadingly informed that the swabs were not “new” or
“extra” and were “merely a formality.” The earlier violation,
which included the detectives repeatedly ignoring defendant’s request to speak to an attorney, was not sufficiently
dissipated when defendant’s subsequent consent arose after
his own expressed confusion about the swabs and the detective’s misleading assurances regarding the same.
The state maintains that defendant fully volunteered his consent and argues that there is no causal connection between the violation and defendant’s consent. The
state contends that, as in Delong, this is not a case in which
the unlawful interrogation “left little, if anything, of incriminating potential … unsaid.” 357 Or at 380 (internal quotation marks omitted). In Delong, a deputy sheriff placed
the defendant in custody after a traffic stop, and, without
first advising the defendant of his Miranda rights, asked “if
there was anything we should be concerned about.”
357 Or
at 367. The defendant responded “no” and then offered that
the deputies could search the vehicle if they wanted.
Id. The
Supreme Court broke that response by the defendant into
its two parts and noted that the second part had been “an
invitation to the officers to search his car if they wanted to
do so.”
Id. at 375. After concluding that the officer’s unlawful conduct could “hardly be characterized as egregious,”
the court then concluded that the defendant’s volunteered
or volitionally made invitation was evidence of the character of the defendant’s consent that attenuated the taint of
the prior violation.
Id. at 378-79; see also State v. Rodriguez,
317 Or 27, 41-42,
854 P2d 399 (1993) (concluding that the
defendant’s unsolicited offer to search his apartment attenuated the taint of a prior unlawful seizure where the officer asked the defendant if he had any guns or drugs and
Cite as
320 Or App 705 (2022) 721
the defendant responded, “No, go ahead and look.”); State v.
Kennedy,
290 Or 493, 504-06,
624 P2d 99 (1981) (concluding
that the defendant’s invitation, “Would you like to search
my luggage,” in response to an officer’s assertion that the
police had information that the defendant was carrying
drugs, made the consent voluntary and therefore attenuated
from any earlier illegal seizure).
Defendant’s consent to the buccal swabs here was
made volitionally. There were indications that defendant
had some understanding of his consent. He received an
explanation of the procedure that was, at times, correct.
He gave both oral and written consent. The written form
informed defendant that he could refuse consent and demand
that the police obtain a search warrant. He also limited
his consent to the buccal swabs and refused to offer other
information.
However, the consent was also more tied to the prior
constitutional violations than was the case in Delong. The
police’s post-violation conduct in obtaining defendant’s consent occurred on the heels of the police ignoring defendant’s
repeated requests for an attorney and invocations of his
right to remain silent, and included obtaining defendant’s
consent by downplaying and making misleading statements
about the significance of that consent. The written form also
did not inform defendant of his right to seek counsel regarding the buccal swabs. In sum, we conclude that the fourth
Jarnagin factor relating to whether subsequent events may
have dissipated the taint of the earlier violation, including
the character of defendant’s consent and the causal relationship between the earlier violation and that consent, slightly
favors defendant.
We turn to the fifth Jarnagin factor, “the use that
the state has made of the unwarned statements.” 351 Or at
716. We conclude that this factor favors neither the state nor
defendant. It is true, as the trial court found, that the police
did not directly trade on defendant’s un-Mirandized statements to obtain his consent. The police always had intended
to obtain defendant’s DNA either through his voluntary
consent or by obtaining a warrant; after all, it was the primary reason that the police arrested defendant and brought
722 State v. Williams
him to the station. See Delong,
357 Or at 380 (noting the
lack of causation between the earlier violation and the later
consent, based in part on the fact that police did not “trade
on” the defendant’s un-Mirandized statement to obtain the
defendant’s consent).
However, there were less direct ways in which
the police did trade on the prior constitutional violation in
obtaining defendant’s consent. As noted, the police continuously ignored defendant’s invocations, including his invocation of the right to counsel, and then traded on defendant’s lack of counsel and his limited understanding of
the purposes of the requested buccal swabs. We certainly
cannot say that it was a foregone conclusion that defendant
would have supplied his DNA sample without the earlier
violations. See Swan, 363 Or at 132 (examining record to
determine whether interrogation “left little, if anything of
incriminating potential … unsaid and effectively made
defendant’s decision” to provide evidence a “foregone conclusion” (internal quotation marks omitted)); Rodriguez,
317 Or
at 40 (“Exploitation occurs when the police take advantage
of the circumstances of their unlawful conduct to obtain the
consent to search.”). As a result, we conclude that the fifth
Jarnagin factor favors neither side.
The Supreme Court has made clear that the mere
fact that a defendant was in custody and gave consent to
search after a Miranda violation does not, by itself, foreclose
the possibility that an officer may conduct a lawful search
pursuant to that consent. Delong, 357 Or at 383-84. Rather,
the question depends on the facts of each case and “entails
a consideration of the extent to which the nature and extent
of the custodial questioning affected a suspect’s decision to
invite the search.”
Id. at 384. There is a “range of circumstances that can affect whether subsequently discovered
evidence derives from the failure to give required Miranda
warnings.”
Id. at 383. The facts here present a somewhat
difficult analysis because they are not directly on point with
prior case law. However, the state has the burden of proof
and persuasion here. Considering all of the factors applied
to the totality of the circumstances, we conclude that the
state did not meet its burden to demonstrate that defendant’s
Cite as
320 Or App 705 (2022) 723
consent was not the product of the unlawful violation and
attenuated the taint of the earlier Miranda violations. As a
result, we conclude that the trial court erred in concluding
otherwise.
We also conclude that the error was not harmless.
See State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003) (stating that an error is harmless when we can say that there
is “little likelihood that the particular error affected the
verdict”). The state contends that any error was harmless
because the evidence was only “confirmatory” oral-swab evidence that was only “collected in case there was a chainof-custody dispute involving” defendant’s prior DNA sample
in CODIS. However, that argument ignores that the state
did not prove that the original DNA sample in CODIS was
defendant’s except through the subsequent 2017 buccal
swabs. The challenged evidence was not cumulative. The state
proved defendant’s identity through the newly acquired buccal
swabs.
The state also contends that any error was harmless
because the evidence was “insignificant and was consistent
with defendant’s theory of the case.” Again, the evidence was
not insignificant; it tied defendant directly to the complaining witness. The state sought it out to confirm defendant’s
DNA in CODIS. The state is correct that defendant argued
in closing that there was evidence that any sexual activity
that took place on the night in question “may have all been
consensual activity.” However, defendant never admitted
that he had had sexual contact with the complaining witness. In closing argument, defense counsel went out of the
way to continually refer to the “man” who had had sexual
relations with the complaining witness, but never stipulated
that defendant was that man. There was some other evidence connecting defendant to the complaining witness, primarily a note listing defendant’s address. But we cannot say
that the admission of the new DNA evidence that directly
tied defendant to the complaining witness had little likelihood of affecting the verdict. See Davis, 336 Or at 32. The
error was not harmless. As a result, we reverse and remand
the judgment.
Reversed and remanded.
724 State v. Williams
POWERS, J., dissenting.
It is undisputed that a defendant’s consent can
attenuate the taint of an earlier Miranda violation. See,
e.g., State v. Delong, 357 Or 365, 378,
350 P3d 433 (2015)
(explaining that a defendant’s voluntary consent can attenuate a Miranda violation if the consent was either “not
affected by or was only tenuously connected to a prior illegality”). The failure by law enforcement to give a person
the required Miranda warnings does not necessarily prevent that person from making an independent decision to
consent to a search. Generally stated, we look to whether a
defendant’s consent was “tainted” because it was “derived
from” or was the “product of” the unlawful conduct by law
enforcement. Given the trial court’s extensive findings of
fact in this case, including defendant’s change of demeanor
when he was brought back into the interview room to obtain
the buccal swabs and defendant’s volitional act of signing
the modified consent form before self-administering those
swabs, I would conclude that the trial court did not err in
denying the motion to suppress. Accordingly, I respectfully
dissent.
In this case, there is no question that the detectives
failed to give defendant Miranda warnings and continued
to question him in violation of his rights under Article I,
section 12, of the Oregon Constitution. As the trial court’s
findings describe the circumstances, “During this time,
Defendant became verbally and physically agitated and,
although he initially refused to sign the sex offender registration [form], ultimately [he] did sign the registration.”
Further, there is no dispute about the trial court’s findings of
historical fact, which I describe in more detail below, leading
up to defendant providing the buccal swabs. Because I generally agree with the majority opinion’s detailed discussion
of the factors described in State v. Jarnagin, 351 Or 703, 716,
227 P3d 535 (2012), and State v. Unger,
356 Or 59, 79-80,
333
P3d 1009 (2014) (analyzing when, in an Article I, section 9,
context, a defendant’s voluntary consent can attenuate a
prior illegality), I do not repeat that analysis here. I further
agree that many of those factors lean in defendant’s favor.
Those factors, of course, do not create a simple arithmetic
Cite as
320 Or App 705 (2022) 725
problem; rather, we are assessing the totality of the circumstances to determine whether the consent to provide the
DNA evidence in this case was derived from or was the product of the earlier Miranda violations. See Delong,
357 Or at
373 (observing that, “[w]hen no belated Miranda warnings
have been given, the question [of] whether the taint flowing from a Miranda violation has been attenuated will vary
depending on the totality of the circumstances”); Jarnagin,
351 Or at 716 (explaining that, in evaluating attenuation,
the court considers, among other factors, “subsequent events
that may have dissipated the taint of the earlier violation”).
As explained below, the totality of the circumstances leads
me to conclude that the state carried its burden of production and persuasion to demonstrate that defendant’s decision to provide the DNA samples was not the product of the
investigators’ earlier violations of defendant’s right against
self-incrimination and the derivative right to counsel.
In my view, the trial court made important findings of historical fact about the circumstances leading up to
defendant’s volitional act of providing the buccal swabs that
the majority opinion too readily discounts. We are bound
by the trial court’s findings of historical fact where there is
constitutionally sufficient evidence to support them. State v.
Maciel-Figueroa, 361 Or 163, 165-66,
389 P3d 1121 (2017)
(so stating). We will presume that the court found facts consistent with its ultimate conclusion, but we will not presume
an implicit finding where the record does not support it or
where the record shows that such a finding was not part of
the trial court’s chain of reasoning forming the basis of its
ultimate legal conclusion. State v. Gatto,
304 Or App 210,
212,
466 P3d 981 (2020).
First, defendant’s demeanor changed from initially
being “verbally and physically agitated” during the first
interview. The trial court contrasted defendant’s initial
demeanor with a finding of historical fact that his “demeanor
was no longer agitated” when he was brought back into
the interview room to self-administer the buccal swabs
(or “oral swabs” to use the trial court’s terminology). That
demeanor change—when combined with a temporal and
spatial change from leaving the interview room and coming
726 State v. Williams
back to the room four minutes later—supports a conclusion
that defendant’s consent was not the product of the earlier
Miranda violations.
Second, the trial court’s order denying defendant’s
motion to suppress provides, in part:
“Finally, after one final request for a lawyer, the detectives took Defendant back to a holding cell and the recording ceased. The uncontroverted testimony by Detective
Christensen was that in the following four minutes, which
was not recorded, the detective notified Defendant that he
would be seeking a search warrant to obtain DNA swabs.
Defendant then told Detective Christensen that his DNA
was already in the system and although he would allow
the swabs, he did not want to talk. Defendant was then
returned to the interview room where the detectives and
Defendant had a recorded but not videotaped conversation
about the purpose of the DNA swabs. Defendant ultimately
signed a consent form for oral DNA swabs.”
Defendant does not challenge those findings on appeal, and
the majority opinion appears to accept those findings. The
majority opinion, however, then goes on to conclude that
Christensen “misled defendant by stating that the sample
was not ‘new’ and repeatedly downplayed it as just a ‘formality,’ which was not the case.” 320 Or App at 719 n 3. That
conclusion by the majority opinion appears to run directly
contrary to the trial court’s later findings, when it explained
that defendant
“was given a written consent form to review, acknowledged
he could read and write, appeared to read aloud from the
consent form, and adopted Detective Christensen’s alteration of the consent form changing the term ‘any article’
to ‘oral swabs.’ The detectives clearly explained what the
oral DNA swabs were, and their purpose. Defendant also
acknowledged having given oral swabs before, and his
statements reflect an understanding of their purpose: ‘I
understand the procedure when you … they take; they
run it through the machine to see if they get any hits.’ ”
The trial court’s finding that the detectives “clearly explained
what the oral DNA swabs were, and their purpose,” which
defendant also does not challenge on appeal, is supported by
Christensen’s uncontroverted testimony.
Cite as 320 Or App 705 (2022) 727
More importantly, the trial court’s findings highlight that defendant was provided with a consent form that
explained that he could refuse to consent to a search and
that he could demand that a search warrant be obtained
prior to any search. That standardized consent form was
modified by Christensen to account for the specific type of
search, viz., a search of his “person” instead of “premises,”
and further modified to provide consent for a search that
involved four buccal swabs.
Third and finally, the trial court also found that
during the second interview that the detectives did not
question defendant. The trial court explained, “In fact, when
Defendant brought up the 2011 rape case several times
during the swab process, the detectives reminded Defendant
that he had invoked his rights to silence and counsel and
that they could not ask any questions about that.”
In short, under the totality of the circumstances,
defendant exhibited a significant demeanor change and had
the opportunity to review and sign a consent form that was
modified for the specific type of DNA search before providing his consent. Although it is undisputed that the detectives violated defendant’s right against self-incrimination
and the derivative right to counsel, the state has, in my
view, proved that defendant’s subsequent decision to provide
his consent to the DNA swabs was not a product of the earlier violations. Given the trial court’s findings of historical
fact, which defendant does not challenge on appeal, I would
affirm the trial court’s denial of the motion to suppress.
Accordingly, I respectfully dissent.
