State v. Craigen

                                      696

 Argued and submitted March 3, 2022; decision of Court of Appeals affirmed;
  judgment of circuit court affirmed in part and reversed in part, and case
     remanded to circuit court for further proceedings January 19, 2023


                    STATE OF OREGON,
                     Petitioner on Review,
                               v.
                 GEORGE WEST CRAIGEN,
                    Respondent on Review.
           (CC CF140169) (CA A158112) (SC S068736)
                                   

    Defendant moved to suppress evidence obtained as a result of police questioning on the ground that the questioning violated his right to counsel under
Article I, section 11, of the Oregon Constitution because, although the questioning occurred during an interrogation about a crime that he had not yet been
charged with, it concerned other crimes that he had already been charged with
and on which he was represented by counsel. Held: Police questioning about
crimes on which defendant had been charged and was represented by counsel
violated defendant’s Article I, section 11, right to counsel and evidence obtained
as a result of that violation had to be suppressed.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for further proceedings.



    On review from the Court of Appeals.*
   Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   David O. Ferry, Deputy Public Defender, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
    Claire Powers, Oregon Justice Resource Center, Portland,
filed the brief for amicus curiae Oregon Justice Resource
Center. Also on the brief was Malori Maloney.
______________
   * Appeal from Umatilla County Circuit Court, Russell B. West, Judge. 

, 

 (2021).
Cite as 

 (2023)                                                   697

  Before Flynn, Chief Justice, and Duncan, Nelson, and
DeHoog, Justices, and Kistler and Walters, Senior Judges,
Justices pro tempore.…
    DUNCAN, J.
   The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in
part, and the case is remanded to the circuit court for further proceedings.




______________
    … Balmer, J., retired December 31, 2022, and did not participate in the decision of this case. Garrett, Bushong, and James, JJ., did not participate in the
consideration or decision of this case.
698                                         State v. Craigen

        DUNCAN, J.
         While interrogating defendant about the murder
at issue in this case, which defendant had not yet been
charged with, detectives asked defendant about firearms
crimes, which defendant had already been charged with in
other cases and on which he was represented by counsel.
After the state brought this murder case against defendant,
defendant filed a motion to suppress evidence obtained as a
result of the interrogation, including, as relevant on review,
evidence obtained as a result of the questioning about the
firearms cases. Defendant argued that that questioning violated his right to counsel under Article I, section 11, of the
Oregon Constitution and that all evidence resulting from
the violation had to be suppressed. The trial court denied
the motion. Defendant appealed, renewing the argument
that he had made in the trial court. The Court of Appeals
agreed with defendant. For the reasons explained below, so
do we.
      I. HISTORICAL AND PROCEDURAL FACTS
         The relevant facts are few. In 2011, defendant was
facing four charges of felon in possession of a firearm (FIP).
Defendant had retained counsel, Gushwa, to represent him
on those charges. Gushwa had sent the district attorney a
notice stating, “Please instruct all police officers and personnel of your office not to speak to the defendant without
first obtaining written permission from me.”
         On December 30, 2011, when he was scheduled to
appear for a status conference on the FIP charges, defendant
shot and killed his neighbor, Carter. Two days later, detectives investigating the shooting interrogated defendant. The
detectives did not notify Gushwa about the interrogation.
They believed that Gushwa no longer represented defendant
on the FIP charges, but that belief was mistaken. Gushwa
was still defendant’s counsel of record on those charges.
Although Gushwa would later file a motion to withdraw, he
had not done so at the time of the interrogation.
        Early in the interrogation, the detectives asked
defendant why he had shot Carter, and defendant told them
that he believed that Carter and his family had set him up
Cite as 

 (2023)                                                    699

on the FIP charges. One of the detectives then asked defendant directly about the FIP charges, including how defendant had come into possession of the firearms on which the
FIP charges were based.
        The detectives continued to ask defendant about his
motive for shooting Carter and, at several points during the
interrogation, defendant reiterated his belief that Carter
had set him up on the FIP charges to ensure that defendant
would serve a long prison sentence.
         After the interrogation, the state brought this case
against defendant based on the shooting incident, charging
defendant with several crimes, including murder, which is
the only charge at issue on review.1 This murder case is separate from the FIP cases.
          Prior to trial in this case, defendant filed a motion
to suppress evidence resulting from the interrogation. As
relevant on review, defendant moved to suppress evidence
obtained as a result of the questions that the detectives had
asked after defendant told them that he had shot Carter
because he believed that Carter had set him up on the FIP
charges, including evidence obtained as a result of the questions that detectives had asked about the FIP charges, specifically, how he had come into possession of the firearms
that he was charged with possessing. Defendant argued
that those questions violated his right to counsel under
Article I, section 11, of the Oregon Constitution. The trial
court denied the motion.
        The case proceeded to a jury trial. Defendant did
not dispute that he had shot and killed Carter. Instead,
he raised two defenses relating to his mental condition,
one based on insanity and the other based on an extreme
emotional disturbance.2 To support the defenses, defense
    1
      In addition to charging defendant with murder, ORS 163.115, the state
charged defendant with manslaughter, ORS 163.118; FIP, ORS 166.270; unlawful use of a weapon, ORS 166.220; obliteration or change of identification number on a firearm, ORS 166.450; and three counts of reckless endangering, ORS
163.195.
    2
      ORS 161.295 provides that a person is guilty except for insanity if, “as a
result of a qualifying mental disorder at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of
the conduct or to conform the conduct to the requirements of law.” ORS 163.135
700                                                         State v. Craigen

counsel presented evidence that defendant had brain damage and a history of delusional thinking, including delusions
about Carter. Although Carter had been defendant’s friend,
defendant had come to believe that Carter had caused defendant’s wife to leave him, had plotted to have him put in jail,
and intended to acquire his property. The state disputed
defendant’s claims about his mental condition. It played a
video recording of the detectives’ interrogation of defendant,
which it used to argue that the shooting was not the product
of insanity or an extreme emotional disturbance.
         The jury rejected defendant’s defenses and found
him guilty of murder and other charges.3 On the murder
count, the trial court sentenced defendant to life with the
possibility of parole after 25 years.
          Defendant appealed, and the Court of Appeals held
that the trial court had erred in denying defendant’s motion
to suppress. State v. Craigen, 

, 

(2018) (Craigen I). The court first stated that, under State v.
Prieto-Rubio, 

, 

 (2016), “ ‘the appropriate test for determining the permissible scope of questioning of a criminal defendant who is represented by counsel
is whether it is objectively reasonably foreseeable that the
questioning will lead to incriminating evidence concerning
the offense for which the defendant has obtained counsel.’ ”
Craigen I, 

 (quoting Prieto-Rubio, 

 (alteration omitted)). Applying that test, the court concluded that, “after defendant disclosed his belief that the
victim had set him up on the 2011 firearm charges, the
officers’ continued questioning violated defendant’s rights
under Article I, section 11.” 

. The court explained:
    “Once defendant disclosed to detectives that there was
    a connection between the 2011 firearm charges and his

provides that an extreme emotional disturbance is an affirmative defense to murder in the second degree when (1) the homicide is committed under the influence
of extreme emotional disturbance, (2) the disturbance is not the result of the
person’s own culpable conduct, and (3) there is a reasonable explanation for the
disturbance.
    3
      In addition to murder, the jury found defendant guilty of a new FIP charge,
as well as charges of unlawful use of a weapon and obliteration or change of
identification number on a firearm, all related to the shooting of Carter. The trial
court dismissed manslaughter and reckless endangering counts.
Cite as 

 (2023)                                       701

   animosity toward the victim and his family, it became reasonably foreseeable, as an objective matter, that further
   questioning would elicit incriminating information about
   the FIP charges, on which defendant was represented.
   Indeed, not only was it foreseeable at that point that further questioning might elicit incriminating information
   about the firearm charges, [one of the detectives] explicitly
   questioned defendant about the firearms underlying those
   charges, eliciting incriminating information from defendant about how he came to possess those firearms. That
   questioning was in direct violation of defendant’s right to
   counsel on those charges.”

 at 28 (citing State v. Beltran-Solas, 

,

 (2016) (noting state’s concession that an officer
violated the defendant’s right to counsel when, during an
interrogation about uncharged crimes, the officer asked the
defendant about charged crimes on which the defendant had
counsel) (footnote omitted)).
         After concluding that the detectives’ questioning
about the FIP charges violated defendant’s right to counsel
on those charges, the Court of Appeals considered whether
evidence resulting from that questioning had to be suppressed. Craigen I, 

. The court explained
that, under its case law, “ ‘[i]f a defendant is interrogated in
violation of his right to counsel under Article I, section 11,
any evidence discovered as result—including evidence of
other crimes—must be suppressed unless the state demonstrates that the evidence was not the product of the constitutional violation.’ ” 

 (quoting State v. Hensley, 

, 

 (2016), and citing State v. Savinskiy,

, 

 (2017) (Savinskiy I)).
The court then noted that the state had not contended
that it had made that showing. Craigen I, 

. Instead, the state had argued, among other things,
that,
   “regardless of any violation of defendant’s Article I, section
   11, rights with respect to the FIP charges, suppression of
   defendant’s statements is not required in this [murder]
   case because, at the time that defendant was questioned,
   his Article I, section 11, rights had not yet attached with
   respect to this case.”
702                                                         State v. Craigen

 (emphasis in original). The court rejected that
argument, explaining that it had rejected an identical argument in Savinskiy I. 

 Consequently, the court concluded
that the trial court had erred in denying defendant’s motion
to suppress. Id.4
         Finally, the Court of Appeals considered whether
the trial court’s erroneous denial of defendant’s motion to
suppress was harmless. 

. The court noted that
defendant’s mental condition at the time of the shooting
was the central issue in the case and concluded that defendant’s statements during the interrogation, “on which the
state relied in urging the jury to reject defendant’s …
defenses, likely played some role in the jury’s rejection of
those defenses” as to the murder charge. 

. Therefore,
the court reversed and remanded defendant’s conviction for
murder, remanded the case for resentencing, and otherwise
affirmed the trial court’s judgment. 

.5
     4
       In addition to arguing that suppression was not required because defendant’s right to counsel had not attached to the murder charge at the time of
the questioning, the state argued that suppression was not required because the
detectives believed that Gushwa had withdrawn from the FIP cases. The court
rejected that argument on the ground that, “once a defendant has retained an
attorney, a person cannot validly waive his Article I, section 11 right to an attorney without having an opportunity to consult with his attorney.” Craigen I, 

 (internal quotation marks omitted).
     On review, the state acknowledges that the detectives’ belief that Gushwa
no longer represented defendant was “not accurate” and that their belief “did not
alter the fact that defendant’s right to counsel had attached in the FIP case.”
     5
       After the Court of Appeals issued Craigen I, the state petitioned for reconsideration, asking the court to clarify its disposition regarding three assignments
of error that it had not expressly addressed in its decision. Defendant had raised
the assignments in a supplemental brief after the decision in State v. Zielinski,

, 

 (2017), which concerned the admissibility of evidence of “personal characteristics” offered in support of an extreme emotional
disturbance defense. The assignments challenged the trial court’s exclusion of
evidence that defendant had proffered regarding his mental condition at the time
of the shooting, and the state asserted that the evidentiary issues raised by the
assignments were likely to arise on remand.
     The Court of Appeals allowed the state’s petition for reconsideration and held
that the trial court had erred in ruling that one category of defendant’s proffered
evidence was irrelevant, but that it had not erred ruling that another category
was irrelevant. State v. Craigen, 

, 

(2019) (Craigen II). The court recognized both that the record regarding the relevance of the evidence could develop differently on remand and that there could be
other bases for excluding the evidence. 

. Therefore, the court stated
that its holdings were without prejudice to further development of the record on
remand in light of Zielinski. 

.
Cite as 

 (2023)                                    703

          The state petitioned for review. At the time, the
Court of Appeals decision in Savinskiy I, which also involved
an investigation into uncharged crimes when the defendant was represented by counsel on charged crimes, was on
review. We subsequently issued our decision in that case,
State v. Savinskiy, 

, 

, adh’d to as modified on recons, 

, 

 (2019) (Savinskiy II),
in which we held that the questioning there did not violate
the defendant’s right to counsel because it concerned a “new,
uncharged and ongoing conspiracy to illegally undermine
the pending charges.” Id. at 807. Thereafter, we allowed
review in this case, vacated the Court of Appeals’ decision,
and remanded the case to the Court of Appeals for reconsideration in light of Savinskiy II. State v. Craigen, 

,

 (2019) (Craigen III).
         On remand, the Court of Appeals first considered
whether, under Savinskiy II, the questioning in this case
violated defendant’s right to counsel. State v. Craigen, 

, 

 (2021) (Craigen IV). For
two reasons, the court concluded that Savinskiy II did not
change the law in a way that affected its prior holding. 

. First, the court explained that, in Savinskiy II,
this court “placed a great deal of emphasis on the fact that
the rule it was announcing applied to questioning about a
crime believed to be ongoing,” and that emphasis indicated
that this court “intended the rule … to apply in those limited circumstances.” 

 Second, the court pointed out that
allowing the type of questioning at issue in this case
   “would largely nullify the clear rule of law announced in
   State v. Sparklin, 

, 

 (1983): ‘Once
   an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding
   the crime charged unless the attorney representing the
   defendant on that charge is notified and afforded a reasonable opportunity to attend.’ ”
Id. at 484. Therefore, the court adhered to its holding that
the detectives had violated defendant’s right to counsel
when they continued to question him, without notifying his
counsel, after it was reasonably foreseeable that doing so
would lead to incriminating evidence on the FIP charges.
Id. at 484-85; see Craigen I, 

 (so holding).
704                                                          State v. Craigen

         The Court of Appeals also adhered to its holding
that the trial court had erred in failing to suppress the
evidence resulting from the violation of defendant’s right
to counsel. Craigen IV, 

. The court
explained that Savinskiy II did not affect that holding,
because, in Savinskiy II, this court had held that the questioning at issue did not violate the defendant’s right to counsel and, therefore, this court had not addressed whether
evidence resulting from a violation of a defendant’s right to
counsel must be suppressed. 

.
          Finally, the Court of Appeals adhered to its holding
that the error was harmful as to defendant’s murder conviction. 

 Therefore, the court again reversed that conviction
and remanded the case for resentencing. Id.6
                               II. ANALYSIS
A.    Relevant Law
         Article I, section 11, of the Oregon Constitution
provides, “In all criminal prosecutions, the accused shall
have the right … to be heard by himself and counsel[.]”
The right to counsel is essential in our adversarial system
of criminal law. Criminal prosecutions can carry great consequences, and criminal proceedings can be complex. The
state utilizes trained professionals to represent its interests
in prosecutions, and Article I, section 11, guarantees defendants the right to do the same.7 Sparklin, 

 (“The
constitutional right to counsel is meant to counteract the
    6
      On remand from this court to the Court of Appeals, the parties filed supplemental briefs regarding whether the trial court’s erroneous exclusion of evidence
of defendant’s “personal characteristics,” in and of itself, presented a basis for
reversal. In addition, after the decisions in Ramos v. Louisiana, 

, 

, 

 (2020), and State v. Ulery, 

, 

(2020), defendant filed a supplemental brief seeking reversal of his conviction
on Count 5, obliteration or change of identification number on a firearm, on the
ground that it was based on a nonunanimous jury verdict. On the first issue, the
Court of Appeals held that defendant had failed to establish that the trial court’s
evidentiary error was harmful. Craigen IV, 

. But the court
stated, as it had in Craigen II, 

, that its holding did not preclude
further development of the record on remand. Craigen IV, 

.
On the second issue, the court held that it was plain error for the trial court to
accept the jury’s nonunanimous verdict on Count 5. 

. Consequently, the
court reversed that count as well. 

    7
      As the United States Supreme Court explained regarding the right to counsel under the Sixth Amendment of the United States Constitution:
Cite as 

 (2023)                                                      705

handicaps of a suspect enmeshed in the machinery of criminal process.” (Internal quotation marks omitted.)).
         The Article I, section 11, right to counsel is an individual right. The right exists so that, when the state exercises its prosecutorial powers against a person, the person
can call on counsel to assert and protect the person’s rights.
As such, it is a particularly important right, one through
which other rights are given effect, including the state constitutional rights to be free from unreasonable searches and
seizures and compelled self-incrimination, Or Const, Art I,
§§ 9, 12, as well as the rights to be tried by an impartial
jury, to meet witnesses face to face, and to have compulsory
process for obtaining witnesses, Or Const, Art I, § 11.
         Although the Article I, section 11, right to counsel
is an individual right, it benefits the criminal legal system
and the public in general. The state constitutional rights
of individuals, including the right to counsel, help ensure
that the state abides by the legal limits on its authority, that
criminal proceedings are fair, and that verdicts are reliable.
Thus, although they are individual rights, they help preserve the rule of law and the integrity of the legal system.
         The Article I, section 11, right to counsel was “originally understood to apply only to the conduct of criminal
trials.” Prieto-Rubio, 

. That was because trial
was where “the primary confrontation between state and
individual occurred.” Sparklin, 

 n 9. But over
time the nature of law enforcement and criminal prosecutions changed and the point at which an individual first
confronted “the amassed power of the state … moved back

   “[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire
   a lawyer, cannot be assured a fair trial unless counsel is provided for him.
   This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try
   defendants accused of crime. Lawyers to prosecute are everywhere deemed
   essential to protect the public’s interest in an orderly society. Similarly, there
   are few defendants charged with crime, few indeed, who fail to hire the best
   lawyers they can get to prepare and present their defenses. That government
   hires lawyers to prosecute and defendants who have the money hire lawyers
   to defend are the strongest indications of the widespread belief that lawyers
   in criminal courts are necessities, not luxuries.”
Gideon v. Wainwright, 

, 

, 

 (1963).
706                                            State v. Craigen

in the process from trial to the police stage.” 

 (internal
quotation marks omitted). The change “ ‘tended to generate
pretrial events that might appropriately be considered to be
parts of the trial itself.’ ” Prieto-Rubio, 

 (quoting
United States v. Ash, 

, 

, 

 (1973)). In light of the change, this court has ruled
that the Article I, section 11, right to counsel applies “to
those stages of a criminal proceeding ‘when [a defendant]
must take steps or make a choice which is likely to have a
substantial effect on the prosecution against him.’ ” Prieto-Rubio, 

 (quoting State v. Miller, 

,

 (1969) (alteration in Prieto-Rubio)).
          Regarding the investigative stage of a criminal proceeding, this court has recognized that “the right to an attorney during the investigative stage is at least as important as
the right to counsel during the trial itself.” Sparklin, 

 n 9. In keeping with that recognition, this court has
ruled that a defendant has the right to have counsel present at certain pretrial events. 

. As this court has
explained, pretrial events like interrogations, line-ups, polygraph sessions, and psychiatric examinations “are investigative tools by means of which the state builds its case” against
a defendant, and, in order to preserve counsel’s effectiveness
and the fairness of trial, the defendant has a right to have
counsel present at those events. 

; Savinskiy II, 

 (to protect a defendant’s right to counsel, courts must
recognize that evidence obtained in pretrial confrontations
between the state and the defendant, outside the presence of
defense counsel, can undermine counsel’s effectiveness and
the fairness of trial); see also State v. Gray, 

,

 (2022) (holding that, under Article I, section 11,
a defendant has a right to have counsel present when he testifies before a grand jury because the opportunities for prejudice are “manifest” in that the defendant “might waive an
evidentiary privilege by failing to claim it, or he might make
statements against interest, or he might present testimony
in a way that contradicts (or seemingly contradicts) any later
testimony at trial”).
       As to interrogations, in Sparklin, this court ruled,
“Once an attorney is appointed or retained, there can be
no interrogation of a defendant concerning the events
Cite as 

 (2023)                                   707

surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded
a reasonable opportunity to attend.” 

. As this
court explained,
   “[i]n the smallest civil matter an attorney and his or her
   investigator are restricted in their contact with a represented party. We can certainly require no less of prosecutors or police in criminal matters. A defendant may, of
   course, volunteer statements, but this must be on his own
   initiative and not in response to questioning.”

 (footnote omitted).
         The Article I, section 11, restriction on the interrogation of a represented defendant protects the defendant’s
relationship with counsel. “To permit officers to question a
represented suspect in the absence of counsel encourages
them to undermine the suspect’s decision to rely upon counsel. Such interrogation subverts the attorney-client relationship.” Sparklin, 

 (internal quotation marks
omitted). It conveys to the defendant that counsel will not
be made available, and that message can cause a defendant
to believe either that he does not have the right to have his
counsel present or that the officers will not honor his rights.
In turn, those beliefs can cause the defendant not to assert
his rights.
        The Article I, section 11, right to have counsel present at an interrogation applies regardless of whether the
defendant asks for counsel to be present. Sparklin, 

. That is so because, once a person is charged with a
crime, the person “is entitled to the benefit of an attorney’s
presence, advice and expertise in any situation where the
state may glean involuntary and incriminating evidence
or statements for use in the prosecution of its case against
defendant.” 

; see also Prieto-Rubio, 

(quoting Sparklin, 

); Savinskiy II, 

(same). Moreover, once a defendant has counsel, the defendant cannot waive his Article I, section 11, right to counsel
without first having an opportunity to consult with counsel.
Sparklin, 

.
         Not only does the Article I, section 11, right include
the right to have counsel present during interrogations about
708                                            State v. Craigen

charged crimes, it also includes the right to have counsel
present for interrogations about certain uncharged crimes.
This court has explained the limit that Article I, section 11,
imposes on questioning about uncharged crimes in three
cases: Sparklin, Prieto-Rubio, and Savinskiy II. Because the
state, which is the petitioner on review, has focused on the
law regarding police questioning of represented defendants
about uncharged crimes, we pause to briefly describe our
case law on that issue.
         As relevant here, in Sparklin this court indicated
that police questioning of represented defendants about
uncharged crimes violates a defendant’s Article I, section 11,
right to counsel when the uncharged crimes are related
to the charged crimes. 

 (stating, in dicta,
that, because the defendant had been arraigned on, and
was represented on, a forgery charge based on the use of a
stolen credit card, police questioning about the uncharged
assault and robbery during which the credit card had been
stolen was improper, even though the charged forgery and
uncharged assault and robbery occurred at different times
and in different jurisdictions and were being investigated by
different law enforcement agencies).
         Later, in Prieto-Rubio, this court directly addressed
the scope of the Article I, section 11, right to counsel during
police questioning about uncharged crimes. 

. This court focused on the purpose of the right, which,
it reiterated, “is to ensure that a defendant charged with a
crime has the benefit of an attorney’s presence, advice, and
expertise ‘in any situation where the state may glean involuntary and incriminating evidence or statements for use
in the prosecution of its case against defendant.’ ” 

 at 36
(quoting Sparklin, 

 (emphasis in Prieto-Rubio)).
Based on that purpose, this court established an objective,
principled rule for determining when a defendant’s Article I,
section 11, right to counsel on charged crimes includes
the right to have counsel present for questioning about
uncharged crimes, stating:
   “[T]he appropriate test for determining the permissible
   scope of questioning of a criminal defendant who is represented by counsel is whether it is objectively reasonably
Cite as 

 (2023)                                                       709

     foreseeable that the questioning will lead to incriminating
     evidence concerning the offense for which the defendant
     has obtained counsel.”
Prieto-Rubio, 

; 

 (same). Without such a
rule, this court concluded, “the state constitutional guarantee of the right to counsel would be circumvented.” 

        Then, in Savinskiy II, this court created a narrow
exception to the Prieto-Rubio rule. 

. There,
based on the specific facts of the case, this court held that,
although it was reasonably foreseeable that police questioning about uncharged crimes—which included conspiracies to
harm persons involved in the prosecution of the defendant’s
charged crimes—would lead to incriminating evidence of
the defendant’s charged crimes, the questioning did not violate the defendant’s Article I, section 11, right to counsel
because that right “does not guarantee that the state will
provide notice to a defendant’s attorney before questioning
the defendant about a new, uncharged and ongoing conspiracy to harm witnesses to a pending prosecution.” Id.8
B.    Application
        In this case, the state frames the issue as whether
the detectives’ questioning of defendant about uncharged
crimes violated defendant’s right to counsel. It asserts that
the issue is “whether Article I, section 11, precluded the
     8
       In Savinskiy II, this court stated that the issue before it was whether the
questioning about “new criminal activity” violated Savinskiy’s rights, 

, and it explained that it was using the phrase “ ‘new criminal activity’ as a
shorthand to describe the circumstances of defendant’s post-charging conspiracy
to commit new crimes against the prosecutor and witnesses in the pending prosecution.” 

 at 804 n 1. This court restated that framing clearly and repeatedly
throughout the opinion. E.g., 

 (“[T]he question we ultimately must
answer is whether Article I, section 11, guarantees a right to counsel during
police questioning about the kind of new, uncharged criminal activity in which
defendant was engaged.” (Emphasis added.)); 

 (“The issue in dispute
is whether defendant’s new criminal activity is the kind of uncharged criminal activity that falls beyond the boundary of Article I, section 11, protection.”
(Emphasis added.)); 

 (noting that, by contrast, the uncharged crimes in
Prieto-Rubio “were completed before the time that the state indicted the defendant” for the charged crimes); 

 (referring to “investigative techniques
that capture a new crime in progress” (internal quotation marks omitted; emphasis added)); 

 (stating its conclusion that “police were not required to provide notice to the attorney representing defendant on the pending charges before
inquiring about his new, uncharged and ongoing conspiracy to illegally undermine
the pending charges” (emphasis added)).
710                                           State v. Craigen

police in this case from questioning defendant about the
murder that was just committed because he was already
under indictment for a felon-in-possession offense.” The
state asks us to rule that police may question a represented defendant about uncharged crimes as long as (1) the
uncharged crimes occurred after the charged crimes and
(2) the uncharged crimes are fundamentally different from
the charged crimes. In response, defendant and amicus curiae argue that the state’s rule is inconsistent with the right
to counsel because it would deny a defendant the right to the
presence, advice, and expertise of counsel in confrontations
with the state where it is reasonably foreseeable that the
state “may glean involuntary and incriminating evidence or
statements” about charged crimes. Sparklin, 

;
see also Prieto-Rubio, 

 (quoting Sparklin, 

); Savinskiy II, 

 (same). They point
out that questioning about uncharged crimes can lead to
incriminating statements about charged crimes, even if the
uncharged crimes occurred after, and are different from,
the charged crimes.
         We reject the state’s framing of the issue, which
focuses on whether the detectives could question defendant
about uncharged crimes, specifically, the murder. We do so
because the detectives questioned defendant about charged
crimes, specifically the FIPs. As recounted above, after the
detectives asked defendant why he had shot Carter, defendant said that he believed that Carter had set him up on
the FIP charges. After that statement, one of the detectives
immediately asked defendant about the FIP charges, specifically, how defendant had come into possession of the firearms he was charged with possessing. That question was
about charged crimes on which defendant was represented
by counsel. As such, it violated the Sparklin rule that, “[o]nce
an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding
the crime charged unless the attorney representing the
defendant on that charge is notified and afforded a reasonable opportunity to attend.” 

. And, as the Court
of Appeals recognized in its decision in this case, nothing
in Savinskiy II altered that rule. Craigen IV, 

. Nor could it have. The rule is a core component of the
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right to counsel. Sparklin, 

 (“Once accused has
sought the safeguard of counsel, it is unfair to let skilled
interrogators lure him from behind the shield into an
unequal encounter.” (Internal quotation marks and citation
omitted.)).9
         Because the detectives violated defendant’s right to
counsel by questioning him about the FIP charges on which
he was represented, the question becomes whether the
resulting evidence had to be suppressed. Under Oregon constitutional law, when the state violates an individual’s constitutional right, the state cannot use evidence obtained as
a result of that violation. State v. Jones, 

, 

 (1967) (“If evidence is obtained as the fruit of illegal
police conduct, it may not be used in state courts.”). “This
proscription covers testimonial evidence as well as physical
evidence.” 

. The evidence must be suppressed in
order to vindicate the individual’s personal rights. State v.
Davis, 

, 

 (1992) (so explaining regarding violations of Article I, section 9). Suppression
is required “ ‘to preserve … rights to the same extent as if
the government’s officers had stayed within the law.’ ” 

 at
253 (quoting State v. Davis, 

, 

(1983) (alteration in original)). In other words, the parties
must be restored “to their positions as if the state’s officers
had remained within the limits of their authority.” Davis,

; see also State v. Simonsen, 

, 518-
19, 

 (1994) (adopting rationale of Davis, 

, and requiring suppression of evidence resulting from violations of Article I, section 12). Accordingly,
this court has held that “[t]he remedy for a violation of
Article I, section 11, is the exclusion of any prejudicial evidence obtained as a result of that violation.” Prieto-Rubio,

; State v. Spencer, 

, 

 (1988) (ruling that, under Article I, section 11, a person arrested for driving under the influence of intoxicants
has the right, upon request, to a reasonable opportunity

     9
       Because the detectives asked defendant about charged crimes on which he
was represented by counsel, we need not address the state’s argument that we
should alter the law regarding the Article I, section 11, limits on police questioning of a represented defendant about uncharged crimes. Accordingly, we adhere
to law set out in Sparklin, Prieto-Rubio, and Savinskiy II.
712                                          State v. Craigen

to consult with counsel before deciding whether to submit
to a breath test and that a violation of that right requires
suppression of the breath-test result); State v. Dinsmore,

, 

 (2006) (following Spencer and
holding that a breath-test result obtained as a result of a
violation of Article I, section 11, was “inadmissible for all
purposes”).
         If officers violate a defendant’s state constitutional
rights and the defendant establishes a minimal factual
nexus between the violation and the subsequent discovery of
evidence, the evidence must be suppressed unless the state
shows that the evidence did not result from that violation.
State v. Thompson, 

, 

 (2022). The
state can do so by showing one of three things: that the evidence was discovered through an independent source, that
the evidence would have been inevitably discovered, or that
the discovery of the evidence was so attenuated from the
violation as to dissipate the taint of the unlawful conduct.

.
        In this case, the state does not contend that it has
made such a showing. Therefore, like the Court of Appeals,
we conclude that the trial court erred in denying defendant’s
motion to suppress.
         In arguing against that conclusion, the state does
not directly address whether the detectives’ questioning
about the charged FIPs requires suppression of the evidence
at issue. Instead, the state makes an argument based on
the premise that the questioning at issue was about the
uncharged murder. It argues that the detectives did not
violate defendant’s right to counsel when questioning him
about the uncharged murder because defendant’s right to
counsel had not yet attached to that crime. The state’s focus
on whether defendant’s right to counsel had attached to the
uncharged murder is misdirected. It is undisputed that
defendant’s right to counsel had attached to the FIP charges
when the detectives questioned him about those charges in
contravention of the Sparklin rule. That questioning violated defendant’s right to counsel on the FIP charges, and
that violation requires suppression of the evidence that the
state obtained as a result.
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         The state seems to suggest that, even though the
detectives violated defendant’s right to counsel on the FIP
charges, the state can use evidence resulting from that violation in its prosecution of the murder charge. But that is
inconsistent with Oregon’s exclusionary rule, under which
parties are to be restored “to their positions as if the state’s
officers had remained within the limits of their authority.”
Davis, 

; see also Dinsmore, 

 (evidence resulting from a violation of Article I, section 11, is
“inadmissible for all purposes”). The state cannot benefit from a violation of a defendant’s constitutional rights.
Therefore, evidence resulting from the violation of defendant’s right to counsel on the charged FIPs—including evidence of the uncharged murder—had to be suppressed. The
trial court erred in ruling otherwise.
         Because the trial court failed to suppress the evidence, and because the admission of the evidence was prejudicial as to defendant’s murder conviction, reversal of that
conviction is required.
         The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for further proceedings.