S054425, Opinion — State v. Shaff

639
Argued and submitted September 5, decision of Court of Appeals reversed in part;
judgment of circuit court affirmed December 28, 2007
STATE OF OREGON,
Petitioner on Review,
v.
MARTIN ALLEN SHAFF,
Respondent on Review.
(CC 220317998; CAA124908; SC S54425)
175 P3d454
CJS, Criminal Law § 898.

640 	v. Shaff
En Banc
On review of a decision of the Court of Appeals.*
Janet A. Klapstein, Senior Assistant Attorney General,
argued the cause and filed the brief for petitioner on review.
With her on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Joshua B. Crowther, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
KISTLER,J.
The decision of the Court of Appeals is reversed in part.
The judgment of the circuit court is affirmed.
Appeal from Lane County Circuit Court, Bryan T. Hodges, Judge. 209 Or
App 68, 146 P3d 389 (2006J.

Cite as 343 Or 639 	641
KISTLER, J.
The question that this case presents is whether Arti-
cle I, section 12, of the Oregon Constitution required police
officers to give defendant Miranda warnings when they went
to his home to check on a report of domestic abuse. 1 The trial
court held that no Miranda warnings were required and
denied defendant's motion to suppress his statements. The
Court of Appeals reversed, holding that Article I, section 12,
required Miranda warnings because the circumstances were
"compelling." State v. Shaff, 209 Or App 68, 146 P3d 389
(2006). We allowed the state's petition for review and now
reverse the Court of Appeals decision.
We state the facts consistently with the trial court's
factual findings and its decision denying defendant's motion
to suppress. See State v. Juarez-Godinez, 326Or1, 7, 942 P2d
772 (1997) (stating standard). A pizza delivery driver called
the police because he was worried about the welfare of one of
his customers. He told them that, when he delivered a pizza
that evening to defendant's trailer, the woman who answered
the door appeared to be injured. At approximately 7:30 p.m.,
two officers went to check on the woman's welfare. When the
officers arrived at defendant's home, they knocked on the
door and announced who they were. No one answered,
although the officers could hear someone moving around
inside. The officers walked around the trailer and "just
tap[ped]" on the windows in case someone was in the back
room or had not heard the knock. When no one responded,
they spoke to the neighbors and then stepped about 30 feet
away from defendant's trailer while they talked with each
other.
While they were talking, defendant opened the door
and looked out. One of the officers called to him as both offi-
cers began walking back towards the trailer. As the other
officer explained, "it was more of a[n] identification, you
' Article I, section 12, of the Oregon Constitution is an independent source for
warnings similar to those required under the Fifth Amendment to the United
States Constitution, as described inMiranda u. Arizona, 384 US 436, 86 S Ct 1602,
16 L Ed 2d 694 (1966). See State v. Magee, 304 Or 261, 265-66, 744 P2d 250 ( 1987)
(so stating). For ease of reference, we refer to those warnings as Miranda rights or
Miranda warnings.

642 	State v. Shaff
know[,] we are here, we want to talk to you." The officers
went up to the front porch of the trailer, where they spoke
with defendant. Officer Savage told defendant that they had
received a report of a dispute and "asked about the woman in
the house." The other officer did not remember the exact con-
versation but explained that "the focus of our response [to
defendant] was to make sure that [the woman] was safe."
Officer Savage testified that, after their conversation on the
front porch, "we ended up going into the house with [defen-
dant}"2 and that, once inside, he looked down the hallway and
saw a woman lying on a bed. Officer Savage went down the
hall to check on her, while Officer Crompton remained with
defendant.
Officer Crompton stayed at the front door of the
trailer, which opened directly onto the living room. He testi-
fied that he "had [defendant] have a seat on the couch [in the
living room] just to keep things calm and keep things under
control." The officer began a "general conversation with
[defendant], not*** regarding the incident** *just small
talk." He then turned to the reason for the officers' presence.
He asked defendant whether "they had had an argument
tonight," to which defendant replied, "[We] always argue." He
then asked if the argument had ever become physical, and
defendant said that it had not. Officer Crompton did not
press the point. He explained that, "we spoke not only about
the incident, but we spoke of other things, general topics that
I * * * don't recall." At one point during the conversation,
defendant got up and went into the kitchen to get a cigarette
or an ashtray. 3
After approximately 10 minutes, Officer Savage took
the woman outside so that they could wait for crisis counsel-
ors to arrive. A'l they walked towards the door, Officer
" Officer Savage did not remember whether he had asked permission before
entering the trailer with defendant. He testified, however, that defendant had
raised no objection to the officers' entering with him.
3 Defendant told the officer that he was going into the kitchen before doing so.
On cross-examination, defense counsel asked, "Do you know whether you had told
him in advance to do that? I mean, if you are going to move around, let me know or
anything like that'?" The officer answered, "I would not have told him that, he did
that I'm sure just out of courtesy." He later agreed that, alternatively, defendant
might have said something because he thought it was expected.

Cite as 343 Or 639 	643
Crompton noticed that the woman had injuries that ''were
consistent with an assault." He spoke briefly with Officer
Savage, who told him that the woman reported that a dog
had knocked her down. Officer Crompton resumed his con-
versation with defendant and again asked if the argument
had become physical. He noted that the woman "obviously
[had] been assaulted."
Officer Crompton could hear the woman talking out-
side with Officer Savage. She continued to say that she had
fallen. Officer Crompton asked defendant "if he knew why
she would say now that she had been assaulted." Defendant
looked down at the floor and did not say anything. Officer
Crompton then said that "[he] understood and asked him
what it was that she had done to anger him." Defendant
replied, "[W]e were fighting about me looking at women on
TV with big boobs. It's like this every night and it pisses me
off. I get so mad that when I start hitting her I can't stop."
Officer Crompton then advised defendant of his
Miranda 	rights. 	He also advised defendant about ORS
133.055(2), which requires officers to arrest a member of a
household if they have probable cause to believe that that
person has assaulted another member of the household.
Officer Crompton asked whether the woman had struck
defendant, and defendant said that she had not. He also
asked whether defendant had any injuries; defendant said
that only his hand was injured. Afterwards, the officers spoke
with each other and decided that they had probable cause to
arrest defendant and, at that point, placed him under arrest.
The trial court held a pretrial hearing to determine
whether the statements that defendant made before Officer
Crompton advised him of his Miranda rights were admissi-
ble. After considering the evidence, the trial court found that
defendant "was not free to go and no doubt would have been
stopped if he had attempted to leave." The court concluded,
however, 	that 	the 	officers' 	questions 	were 	"proper and
reasonable in scope." It reasoned that the officers not only
needed to determine
"if the injuries were the result of criminal assaultive behav-
ior in which case there might be an arrest, but they needed
to determine the nature of the injuries, the cause of the

644 	State v. Shaff
injuries, who inflicted the injuries and I suppose whether
the injuries were justifiable. For example, infl[i]cted in self
defense."
The court ruled that the officers reasonably investigated the
report made to them, advised defendant of his Miranda
rights at the 	conclusion of the investigation, and later
arrested him. It followed, the court ruled, that defendant's
statements were admissible. 4 After hearing evidence that
included those statements, the jury convicted defendant of
one count of fourth-degree assault, and defendant appealed
from that conviction. 5
The 	Court 	of Appeals 	reversed 	that 	conviction
because it concluded that the officers should have advised
defendant of his Miranda rights sooner than they did. The
court explained that three factors that "weigh[ed] heavily in
lits] assessment [we]re defendant's physical restraint by the
officer's presence in the doorway, coercive overtones in the
conduct and the language of the questioning officer, and the
confrontation of defendant with incriminating evidence." 209
Or App at 73. Based on those factors, the court held that the
circumstances 	had 	become 	"compelling" 	during 	Officer
Crompton's discussion with defendant and that the officers
should have advised defendant of his Miranda rights sooner
than they did. Id. at 75.
We allowed the state's petition for review to consider
whether the state constitution required Miranda warnings
during 	the 	officers' 	investigation 	of suspected domestic
4 At the pretrial hearing, defendant raised two arguments. He argued primar-
ily that the officers should have given him Miranda warnings sooner. He also
argued that the emergency aid doctrine did not permit the police to enter his home.
The trial court rejected the second argument without discussion. Regarding the
second argument, Officer Savage had testified that, after speaking with defendant
on the front porch, "we ended up going into the house with him." He also had tes-
tified that, although he could not remember whether he had asked permission first,
defendant did not object to the officers' entering the house with him. Given that evi-
dence, the trial court reasonably could have inferred that defendant had consented
to the officers' entry. See State v. Paulson, 313 Or 346, 352, 833 P2d 1278 (1992)
(trial court could infer from homeowner's failure to ask police to leave that she con-
sented to their entry along with medical personnell. Because the trial court's
implicit factual finding negates the premise of defendant's unlawful entry argu-
ment, we limit our discussion to his Miranda claim.
" The jury also convicted defendant of another count of fourth-degree assault,
which the Court of Appeals affirmed.

Cite as 343 Or 639 	645
abuse. Article I, section 12, of the Oregon Constitution pro-
vides, in part, that "[n]o person shall be * * * compelled in
any criminal prosecution to testify against himself." To pro-
tect a person's right against compelled self-incrimination,
this court has held that, "before questioning, police must give
Miranda warnings to a person who is in 'full custody' or in
circumstances that 'create a setting which judges would and
officers should recognize to be "compelling."'" State v. Roble-
Baker, 340 Or 631, 638, 136 P3d 22 (2006) (quoting State v.
Magee, 304 Or 261, 265, 744 P2d 250 (1987)). In this case,
defendant does not argue that he was in "full custody."
Rather, he contends (and the Court of Appeals agreed) that
the circumstances were "compelling" within the meaning of
Article I, section 12.
The question whether the circumstances were com-
pelling does not turn on either the officer's or the suspect's
subjective belief or intent; rather, it turns on how a reason-
able person in the suspect's position would have understood
his or her situation. See Magee, 304 Or at 265 (stating test
objectively). This court recently summarized some of the con-
siderations that bear on that question. See Roble-Baker, 340
Or at 640-41 (reviewing cases). In deciding whether a reason-
able person would conclude that the circumstances were com-
pelling, this court has considered:
"(1) the location of the encounter, [State v.] Smith, 310 Or
[1, 7, 791 P2d 836 1990)] (concluding that circumstances
were not compelling, in part, because detective met with
defendant in noncustodial facility 'in surroundings rela-
tively familiar to defendant'); (2) the length of the encoun-
ter, State v. Prickett, 324 Or 489, 495, 930 P2d 221 (1997)
(concluding that circumstances were not compelling, in
part, because '[t]he stop as a whole, and the questions, were
brief); (3) the amount of pressure exerted on the defendant,
State v. Carlson, 311Or201, 205, 808 P2d 1002 (1991) (con-
cluding that circumstances were not compelling, in part,
because there was no evidence that 'police coerced or pres-
sured defendant to answer questions'); and (4) the defen-
dant's ability to terminate the encounter, Magee, 304 Or at
265."
340 Or at 640-41. In considering those and other factors, the
"overarching inquiry is whether the officers created the sort

646 	State v. Shaff
of police-dominated atmosphere that Miranda 	warnings
were intended to counteract." Id. at 641.
In this case, defendant was not free to leave, as the
trial court found. However, the officers detained defendant
for only a brief period of time, no more than a typical traffic
stop. See Prickett, 324 Or at 495 (explaining that the circum-
stances were not compelling, in part, because "[t]he stop as a
whole, and the questions, were brief'); State v. Vu, 307 Or
419, 425, 770 P2d 577 (1989) (holding that person stopped for
traffic infraction was not in compelling circumstances). More-
over, Officer Crompton questioned defendant in his own
home, not in the station house. Compare Magee, 304 Or at
265 (finding compelling circumstances when officers held
suspect at the police station for questioning), with Smith, 310
Or at 7-8 (no warnings required when police questioned sus-
pect in familiar surroundings). This is not to say that ques-
tioning that occurs in a person's home can never be compel-
ling. But the fact that the interview occurs in familiar
surroundings diminishes the police-dominated atmosphere
that Miranda warnings were intended to counteract.
Officer Crompton did not raise his voice, threaten
defendant, or engage in a show of force. He did not pressure
or coerce defendant to answer his questions. Rather, the offi-
cers explained to defendant when they arrived that they were
there to "make sure that [the woman] was safe." While
Officer Savage was performing that task, Officer Crompton
spoke with defendant. Although defendant was not free to
leave, he got up and went to the kitchen for a cigarette or an
ash tray during his conversation with Officer Crompton.
During their discussion, Officer Crompton asked
whether defendant and the woman had argued. Defendant
said that they had. When defendant also said that the argu-
ment had not become physical, the officer did not press the
point. Rather, he raised that issue again only after Officer
Savage and the woman walked by them as they went outside.
At that point, Officer Crompton remarked to defendant that
it appeared obvious that the woman had been assaulted. The
officer then asked defendant "if he knew why she would say
now that she had been assaulted," even though the officer
knew that the woman continued to maintain that a dog had

Cite as 343 Or 639 	647
knocked her down. Defendant dropped his head, and the offi-
cer told him that he understood and asked what it was that
the woman had done to anger him.
Far from engaging in a lengthy or coercive interro-
gation, Officer Crompton raised the issue whether the argu-
ment had become physical only twice during his approxi-
mately 10-minute conversation with defendant. The first
time, the officer did not pursue the point after defendant's
denial. The second time the officer raised the issue he did so
only after seeing, and noting, the woman's obvious injuries.
This is not a case like Roble-Baker, where the officers effec-
tively detained the suspect after questioning her for five to
six hours at the police station and continued to confront her
with questions that assumed her guilt. See Roble-Baker, 340
Or at 643 (after the suspect exclaimed, in response to the offi-
cers' statements, "why don't you take me out and hang me,"
the officers reiterated that "it was real important to tell
[them] why she had killed her husband"). Rather, the officer
commented only on the woman's evident injuries and then
asked a question that implied, inaccurately, that she had
reported an assault. Considering all those facts, we conclude
that the circumstances were not sufficiently compelling to
require Miranda warnings. See Prickett, 324 Or at 497
(reaching similar conclusion on comparable facts).
As noted, the Court of Appeals reached a different
conclusion. 209 Or App at 75. In doing so, it focused on three
factors. 	It 	noted 	that 	Officer 	Crompton had 	physically
restrained defendant, that there were "coercive overtones" in
the officer's actions and questions, and that the officers had
confronted defendant with incriminating evidence. Id. at 73.
We review each of those considerations in turn.
First, the Court of Appeals explained that Officer
Crompton had "physically restrain[ed]" defendant by stand-
ing in the doorway. Id. at 73. There was, however, no physical
restraint in the ordinary sense of those words. Although
defendant was not free to leave, the detention was no more
coercive or lengthy than a typical traffic stop. This court has
never held that that minimal level of restraint-without
more-is sufficient to make the setting a compelling one. See

State v. Shaff
Prickett, 324 Or at 497; Vu, 307 Or at 425 (illustrating
proposition). 6
Second, the Court of Appeals reasoned that the offi-
cers' conduct had "coercive overtones." 209 Or at 73. To the
extent that the Court of Appeals' conclusion rests on its per-
ception that the officers spoke in an overbearing or coercive
manner, we think that the court failed to heed the applicable
standard ofreview. What the officers said and the manner in
which they said it are both questions of historical fact, which
we presume the trial court resolved consistently with its
express factual findings and ruling. See Juarez-Godinez, 326
Or at 7 (stating standard ofreview). The record supports the
trial court's implicit finding that the officers acted in an
appropriate and courteous manner in carrying out an inquiry
into a citizen's welfare.
The Court of Appeals observed that the officers'
actions had coercive overtones for an additional reason-one
of the officer's questions had a false premise. To the extent
that 	the 	Court 	of Appeals 	found 	the 	question coercive
because its premise was false, the court erred. As noted, the
question whether the circumstances were compelling does
not turn on what the officer subjectively intended but on how
a reasonable person in the suspect's position would have
understood his or her situation. It follows that the question is
not whether the officer knowingly made a false statement but
what effect the information that the statement conveyed
would have had on a reasonable person in the suspect's
position. 7
In reaching a different conclusion, the Court of Appeals stated that
"ld)efendant was so restrained in his own home that he reasonably felt compelled
to ask the officer for permission to go to the kitchen, and the officer demonstrated
his control over defendant's physical environment when he affirmatively granted
permission." 209 Or App at 73. The Court of Appeals' statement is not consistent
with the record and the trial court's implicit factual findings on that matter. See
note 3 above (setting out officer's testimony on this issue I.
7 We recognize, as the United States Supreme Court explained in Miranda,
that police officers can use false statements as an interrogation technique to coerce
a suspect subject to custodial interrogation into confessing. See 384 US at 453
(describing practice). The officer's statements here did not rise to that level, nor are
they sufficient, in the larger context in which the questioning occurred, to make the
setting a compelling one for the purposes of Article I, section 12. See Oregon v.
Mathiason, 429 US 492, 97 S Ct 711, 50 L Ed 2d 714 ( 1977) (reasoning that false
statement that officer had found suspect's fingerprints at the crime scene did not

Cite as 343 Or 639
In this case, Officer Crompton asked defendant "if he
knew why [the woman] would say now that she had been
assaulted." The officer's question falsely posited that the
woman had reported an assault, and defendant reasonably
could have inferred that the officer suspected that he was the
person who had committed it. The officer's question had a
potentially coercive effect, not because its premise was false
but because of the information it conveyed. Properly consid-
ered, the officer's question is relevant to the third factor that
the Court of Appeals noted in holding that the circumstances
had become compelling-whether the officers had confronted
defendant with evidence of his guilt-and we turn to that fac-
tor now.
In discussing evidence of guilt, the Court of Appeals
failed to distinguish evidence of a defendant's guilt from an
officer's coercive use of that evidence. Two of this court's
cases, Prickett and Roble-Baker, illustrate the distinction. In
Prickett, the officer lawfully had stopped the defendant. 324
Or at 491. As soon as he approached the defendant's car, the
officer detected the odor of alcohol on the defendant's breath
and noticed that the defendant's eyes were watery and blood-
shot. Id. The officer asked the defendant to perform field
sobriety tests (a request from which the defendant reason-
ably could have inferred that the officer suspected he had
been driving while impaired), and the defendant performed
poorly on two of the four tests that the officer administered. 8
Id. After that, the officer questioned the defendant, who later
sought to suppress his answers claiming that, by that point,
the circumstances had become compelling.
When 	the 	officer 	questioned 	the 	defendant 	in
Prickett, there was substantial evidence, apparent to both the
defendant and the officer, that the defendant had committed
the crime of driving under the influence of intoxicants. If evi-
dence of guilt were sufficient by itself to create compelling cir-
cumstances, then the officer in Prickett should have advised
mean that the suspect was in custody for the purposes of the federal Miranda
requirement).
8 The defendant performed poorly on a balance test and failed the horizontal
gaze nystagmus test. 324 Or at 491. Although the defendant would not necessarily
have been aware that he failed the latter test, he presumably would have been
aware that he had difficulty maintaining his balance.

State v. Shaff
defendant of his Miranda rights before questioning him. This
court, 	however, 	held 	that 	no 	Miranda 	warnings 	were
required; it explained that "a court must look at all the cir-
cumstances in which the purportedly compelled statement
was made." Id. at 495 (emphasis added). It considered the
length of the stop, the location of the stop, and whether there
"was any heightened level of activity by the .trooper, such as a
drawn gun or a loud tone of voice." Id.
Conversely, in Roble-Baker, the officers had ques-
tioned the suspect for five to six hours at police headquarters
after finding her husband's body buried in the backyard of
her former home. 340 Or at 633, 643. The suspect twice had
asked to suspend the interview, without success, and the
detective repeatedly had asked the suspect questions that
assumed her guilt. Id. After the officers reviewed the infor-
mation available to them, the suspect exclaimed, "why don't
you take me out and hang me." Id. The suspect left the inter-
view room, but the officers followed her, and the detective
continued to tell her that "it was real important to tell [them]
why she had killed her husband" and asked, "Did he deserve
that?" Id. This court held that, in those circumstances, the
detective's repeated use of questions that assumed the sus-
pect's guilt contributed to a compelling setting that required
Miranda warnings. Id. at 643-44.
Prickett and Roble-Baker teach that what matters is
not whether evidence of guilt was apparent to the suspect;
rather, it is whether the officers used that evidence in a coer-
cive manner. In this case, Officer Crompton raised the issue
whether the argument had become physical only twice dur-
ing his approximately 10-minute conversation with defen-
dant. The first time, the officer did not pursue the point after
defendant's denial. The second time the officer raised the
issue, he did so only after seeing, and noting, the woman's
obvious injuries. The officer's questions were not coercive,
aggressive, or repetitive. Indeed, the last question that the
officer asked was sympathetic. Given the location of the
encounter, the brief time that it lasted, and the absence of
any "heightened level of activity" by the officers, evidence
that an assault had occurred (whether apparent to defendant
or reflected in the officer's questions) is not sufficient to say

Cite as 343 Or 639 	651
that the officers had placed defendant in compelling circum-
stances that required Miranda warnings under the Oregon
Constitution. The trial court correctly ruled that Article I,
section 12, did not require the officers to give defendant
Miranda 	warnings sooner than they did. The Court of
Appeals erred in reversing defendant's assault conviction. 9
The decision of the Court of Appeals is reversed in
part. The judgment of the circuit court is affirmed.
As noted, the jury convicted defendant of two assaults. The Court of Appeals
reversed one conviction but affirmed the other one.