S056371, Opinion — State v. Vondehn

3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted June 10, 2009, decision of Court of Appeals affirmed in part
and reversed in part; judgment of circuit court reversed, and case remanded to
circuit court for further proceedings July 1, 2010

STATE OF OREGON,
Petitioner on Review,
v.
HYATT ROBIN VONDEHN,
Respondent on Review.
(CC C040956CR; CA A128800; SC S056371)
236 P3d 691

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->
<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->
<!-- PageBreak -->

<!-- PageHeader="463-b" -->
<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

CJS, Criminal Law § 898.

# En Banc

On review from the Court of Appeals .*

Erin C. Lagesen, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were John R. Kroger, Attorney General,
and Erika L. Hadlock, Acting Solicitor General.

David J. Celuch, Portland, argued the cause and filed the
brief for respondent on review.

\* Appeal from Washington County Circuit Court, Thomas W. Kohl, Judge. 219
Or App 492, 184 P3d 567 (2008).

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

WALTERS, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.

Linder, J., filed a concurring opinion in which Balmer and
Kistler, JJ., joined.

<!-- PageBreak -->

<!-- PageHeader="463-d" -->
<!-- PageHeader="Cite as 348 Or 462 (2010)" -->
<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

## WALTERS, J.

This criminal case raises two questions of first
impression regarding the right against compelled self-
incrimination in Article I, section 12, of the Oregon Consti-
tution1 and the consequences of the failure to give Miranda
warnings to a person who is in custody and subjected to cus-
todial interrogation.

The uncontested facts establish that the police
arrested defendant on a warrant, handcuffed him, and placed
him in the back seat of a patrol car. A police officer then asked
defendant two questions about a backpack that the officer
had found in the car in which defendant had been a passen-
ger. In response, defendant admitted that he owned the back-
pack and that it contained marijuana. The trial court sup-
pressed those answers because the police had failed to
administer the required Miranda warnings. The trial court
did not, however, suppress the marijuana, ruling that defen-
dant's answer to the next question that the officer asked-
whether they could search the backpack-was voluntary.
Relying on defendant's consent, the officer searched the back-
pack, discovered marijuana, gave the required Miranda
warnings, and questioned defendant further. The officer
asked defendant where he got the marijuana, how much
marijuana there was, how much defendant had paid for it,
and whether he was a middleman. Defendant responded to
each of those questions, but, after he admitted that he was a
middleman, defendant declined to provide further informa-
tion and asked for an attorney. The trial court ruled that
defendant's responses to the post-Miranda questions also
were voluntary and that they would be admitted.

In a stipulated facts trial, the court found defendant
guilty of the crimes of delivery and possession of a controlled
substance.2 Defendant appealed and claimed as error the
denial of his pretrial motions to suppress the marijuana and
his post-Miranda statements.

1 Article I, section 12, provides, in part, that "no person shall * * * be compelled
in any criminal prosecution to testify against himself."

2 Defendant was convicted under former ORS 475.992 (2003), renumbered as
ORS 475.840 (2005).

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

The Court of Appeals observed that Miranda warn-
ings are an essential part of the rights granted by Article I,
section 12, and that the exploitation analysis articulated by
this court in State v. Hall, 339 Or 7, 115 P3d 908 (2005), pro-
vided the appropriate framework to analyze the conse-
quences of failing to give those warnings. State v. Vondehn,
219 Or App 492, 501-07,184 P3d 567 (2008). In applying the
Hall analysis, the court concluded that, because the police
had obtained both the marijuana and the post-Miranda
statements by exploiting defendant's pre-Miranda state-
ments, they must be suppressed. Id. at 507-10.

More specifically, the court reasoned that the police
had learned that the backpack belonged to defendant
only through their pre-Miranda questioning and that
"[d]efendant's answers to [the officer's] questions gave [the
officer] the information that he needed to ask defendant for
consent to search it." Id. at 508. Therefore, the Court of
Appeals identified a "but-for relationship between the uncon-
stitutional questioning and defendant's consent to the
search." Id. The court then decided that the state had not
demonstrated that the evidence did not derive from the pre-
ceding illegality. The state had not argued to the trial court
that the police inevitably would have discovered the evidence
in the absence of the Miranda violation, and the police had

not obtained the evidence independently of the Miranda vio-
lation. The violation provided the basis for the consent to
search, and the consent led to the evidence. Moreover, there
were no intervening circumstances that broke the causal
chain between the Miranda violation and defendant's con-
sent. Because the Court of Appeals concluded that the police
had obtained the marijuana by exploiting the Miranda vio-
lation, it held that the trial court had erred in denying defen-
dant's motion to suppress. Id.

As to the post-Miranda statements, the Court of
Appeals reasoned that, "but for" the illegal questioning and
search of the backpack, the officer would not have had the
information on which he based his post-Miranda questions.
Id. at 509-10. The record did not demonstrate that the police
inevitably would have obtained the later statements, nor did
the record demonstrate that the police had obtained them

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

to cases discussing the common-law privilege against self-
incrimination as it was recognized at the time that Article I,
section 12, was adopted.

This court first considered the text of Article I, sec-
tion 12, and its history in State v. Cram, 176 Or 577, 160 P2d
283 (1945). The issue in that case was whether the testimony
of a physician as to the alcohol content of a sample of the
defendant's blood, taken from him while under arrest and in
custody, violated the defendant's rights under Article I, sec-
tion 12.4 Id. at 578-79. The court noted that, with two excep-
tions, all state constitutions contain provisions against "self-
crimination." Id. at 579. The wording of those provisions
varies from prohibitions on "testifying" and "furnishing evi-
dence" to "being a witness," but the court observed that the
difference in phrasing had not been considered important in
construing their meaning. Id. at 579-80. The court also noted
that the constitutional privilege against self-incrimination
had generally been held to be declaratory of the common-law
privilege and that that privilege was not limited to testimo-
nial utterances, but extended to prevent the compelled pro-
duction of documents or chattels. Id. at 581-82 (quoting
8 Wigmore on Evidence § 2263). The court also quoted
Wigmore for the proposition that, when physical evidence is
obtained by means other than compulsion of the defendant, it
is admissible as long as admission does not depend on the
defendant being called upon to make "any act or utterance of
his own." Id. at 582. Finally, the court applied those princi-
ples to conclude that the testimony of the physician about the
blood sample did not violate the defendant's Article I, section
12, rights. Id. at 593. The defendant had not been compelled
to establish the authenticity, identity, or origin of the blood;
those facts were proved by other witnesses. Id.

In State v. Soriano, 68 Or App 642, 646, 684 P2d
1220 (1984), aff'd and opinion adopted, 298 Or 392, 693 P2d

4 The defendant had not contested the act of obtaining the blood as an uncon-
stitutional search or seizure. This case does not present that issue or the issue dis-
cussed by the dissent in State v. Fish, 321 Or 48, 64-71, 893 P2d 1023 (1995)
(Gillette, J., concurring in part and dissenting in part)-whether physical evidence
concerning a person's identity, appearance, or physical condition implicates Article
I, section 12.

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

26 (1984), this court again examined the history of the con-
stitutional right against self-incrimination and again con-
cluded that the differences in various state constitutional
provisions were inconsequential: "The constitutional lan-
guage varies, but courts generally treat the basic principle as
the same in all the states." 68 Or App at 646. The Soriano
court also agreed that the word "testify" is not a limit on the
protections that Article I, section 12, affords: "We see no rea-
son to construe the Oregon Constitution to give protection
from testifying but not from furnishing evidence." Id. at 646-
47 n 4.

In Soriano, this court held that the Oregon
Constitution prohibits the state from requiring a witness to
relinquish the Article I, section 12, right against self-
incrimination unless it provides the witness with an alter-
native that affords the same protection as the constitution.
Id. at 662. The issue in Soriano was whether Article I, section
12, permits the state to compel the testimony of a witness in
exchange for "use" or "derivative use" immunity without also
extending "transactional immunity." Id. at 644. Use and
derivative use immunity preclude the state from using com-
pelled statements of a witness and their direct or indirect
fruits, such as physical evidence discovered as a result of the
statements, in a prosecution of that witness. Id. at 644 n 3.
Transactional immunity precludes the state from prosecut-
ing the witness for any offense to which the statements
relate. Id. The court acknowledged that, when a witness pro-
vides compelled statements, those statements may influence
a prosecution even if they are not offered in evidence or used
to obtain derivative evidence. Id. at 663. For example, the
statements may affect the discretionary decisions of a prose-
cutor to bring charges or to accept a plea bargain. Id. The
court held that the state could not compel the statements of a
witness without granting transactional immunity because,
without protecting the witness from all evidentiary and
nonevidentiary use of compelled statements, the state would
not afford the witness the same protection that the constitu-
tion confers-the right to remain silent. Id. at 662.

Thus, this court has long interpreted Article I, sec-
tion 12, to impose no distinction between compelled state-
ments and physical evidence derived from such statements or

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

between the use of compelled statements to obtain evidence
and as testimony at trial. We reject the state's argument that
we should now impose those limitations on the reach of
Article I, section 12. We turn to the state's alternative
argument that, even if Article I, section 12, requires that
physical evidence derived from compelled statements be
excluded from evidence, the same is not true for physical evi-
dence derived from the "mere failure to provide Miranda
warnings."

For an understanding of that argument, the state
directs us to the reasoning of the plurality in United States v.
Patane, 542 US 630, 124 S Ct 2620, 159 L Ed 2d 667 (2004).
Although the state acknowledges that we need not defer to
the United States Supreme Court when we interpret the
state constitutional right found in Article I, section 12, see
Soriano, 68 Or App at 645-46 (giving reasons for independent
interpretation of state constitutional right against self-
incrimination),5 the state finds the logic of the lead opinion in
Patane persuasive, and we would be remiss if we did not con-
sider it. That is particularly so because it was the Supreme
Court that first required, to effectuate the protections
afforded by the Fifth Amendment to the United States
Constitution, the warnings that this court later required to
effectuate the protections afforded by Article I, section 12,
known to both courts by the name of the Supreme Court's
decision, Miranda v. Arizona, 384 US 436, 86 S Ct 1602,
16 L Ed 2d 694 (1966).

In Patane, the police arrested a defendant for violat-
ing a restraining order. A detective attempted to inform the
defendant of his Miranda rights, but the defendant inter-
rupted and asserted that he knew his rights, and the officers
did not attempt to complete the warning. The detective then
asked the defendant about a gun. The defendant said that he
did not want to discuss it because he did not want the detec-
tive to take the gun away from him. The detective persisted.

5 In Soriano, the court noted that the common-law rule that no person is bound
to accuse himself first received constitutional status in Virginia in 1776 and that it
was not added to the United States Constitution until 1791. 68 Or App at 646. The
court explained that "[w]hen the United States Supreme Court first acted it simply
adopted one line of state decisions and rejected another." Id.

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

The defendant told him that the gun was in a particular bed-
room and gave the detective permission to retrieve the gun.

The government conceded that the defendant's
answers to the detective's questions were inadmissible under
Miranda, but argued that the failure to complete the
Miranda warning did not require suppression of the gun
itself. The plurality, consisting of Justice Thomas, Chief
Justice Rehnquist, and Justice Scalia, took the position that,
although the admission of "actually coerced statements" and
physical evidence derived from such statements violates the
Fifth Amendment, "a mere failure to give Miranda warnings
does not, by itself, violate a suspect's constitutional rights
."6 542 US at 641-44. Thus, the plurality reasoned, there
was no violation of the Fifth Amendment to deter and no rea-
son to apply the "fruit of the poisonous tree" doctrine of Wong
Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441
(1963). Patane, 542 US at 641-42. According to the plurality,
the Miranda rule is a prophylactic rule that sweeps beyond
the actual protections of the Self-Incrimination Clause. Id. at
639. A court must presume that statements made without its
protections are compelled, but there is no need extend that
rule to exclude physical evidence obtained as a result of
unwarned statements. Id. at 639-43.

Justices Kennedy and O'Connor concurred in the
result. They reasoned that Miranda was based in large part
on an effort to accommodate concerns about compelled testi-
mony and other objectives of the criminal justice system.
Given the important probative value of reliable physical evi-
dence, they could not justify exclusion based on "a deterrence

6 The plurality acknowledged that the Court had held in Dickerson v. United
States, 530 US 428, 444, 120 S Ct 2336, 147 L Ed 2d 405 (2000), that Miranda
announced a constitutional rule that could not be altered by Congress, Patane, 542
US at 636, but cited Chavez v. Martinez, 538 US 760, 772-89, 123 S Ct 1994, 155
L Ed 2d 984 (2003) (plurality opinion) for the proposition that a failure to give those
constitutionally required warnings does not violate the constitution. Patane, 542
US at 641. One of the problems with the plurality's approach is that Chavez was a
case brought under 42 USC section 1983. The plaintiff in that case had not been
criminally prosecuted and, therefore, no evidence, direct or derivative, had ever
been used against him. However, we need not pick and choose here: a plurality
opinion, particularly a plurality opinion addressing a federal constitutional issue
that is not before us, is not controlling, and it therefore stands only for whatever
persuasive power its logic carries.

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

rationale sensitive to both law enforcement interests and a
suspect's rights during an in-custody interrogation." Id. at
644-45.

To address the state's argument that, in interpreting
Article I, section 12, we should adopt the reasoning of the plu-
rality opinion in Patane, we must examine the nature and
purpose of the Miranda warnings that this court requires
and the reasons that statements made without the benefit of
those warnings are excluded from evidence.

In State v. Magee, 304 Or 261, 266, 744 P2d 250
(1987), this court stated that Article I, section 12, "furnishes
an independent basis" for requiring that police administer
Miranda warnings to suspects who are in custody. The prior
year, in State v. Smith, 301 Or 681, 725 P2d 894 (1986), the
court had discussed the basis for the United States Supreme
Court's Miranda decision and whether similar warnings
were required by the Oregon Constitution. Smith was a
divided opinion that resulted in the affirmance of defendant's
conviction on the basis that the defendant was not in custody
when he made the unwarned statements. When the court
then decided Magee, it did not reprise the arguments that it
had considered in Smith or state the rationale for its historic
decision.

Since Magee, this court consistently has held that the
Oregon Constitution requires suppression of statements
made without the benefit of Miranda warnings. See, e.g.,
State v. Roble-Baker, 340 Or 631, 643-44, 136 P2d 22 (2006)
(suppressing unwarned statements made during custodial
interrogation); State v. Smith, 310 Or 1, 7, 791 P3d 836 (1990)
(so stating). The full extent of the court's discussion of the
rationale for that rule has been to state that, when a suspect
is subjected to custodial interrogation, warnings are neces-
sary " 'because of the inherent level of coercion that exists in
such interrogations.'" State v. Scott, 343 Or 195, 200, 166
P3d 528 (2007) (quoting State v. Joslin, 332 Or 373, 380, 29
P3d 1112 (2001)); see also State v. Meade, 327 Or 335, 339,
963 P2d 656 (1998). Further, in discussing the requirement
that police advise suspects subjected to custodial interroga-
tion of the right to assistance of counsel, the court has stated
that that particular warning is required because "a lawyer's

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

presence at a custodial interrogation is one way to ensure the
right to be free from compelled self-incrimination." Meade,
327 Or at 339. A suspect must be informed if an identified
lawyer has been retained or appointed and is seeking to con-
sult with the suspect. Without that information, the suspect
cannot "be said knowingly to have waived his or her right
against compelled self-incrimination under Article I, section
12." Joslin, 332 Or at 383 (citing State v. Haynes, 288 Or 59,
70, 602 P2d 272 (1979)).

In State v. Simonsen, 319 Or 510, 512, 878 P2d 409
(1994), the court followed Haynes and held that the police
had violated the defendant's Article I, section 12, rights when
they interrogated him "without informing him of the fact that
he had a court-appointed lawyer or the fact that the lawyer
had asked to consult with defendant before further interro-
gation took place." The court then stated that its rationale for
suppressing the statements that the defendant had made
during that interrogation was

" 'to preserve * * * rights to the same extent as if the govern-
ment's officers had stayed within the law. * * * In the con-
text of a criminal prosecution, the focus then is on protect-
ing the individual's rights vis-a-vis the government * * *.

" "This focus on individual protection under the exclu-
sionary rule, a rule that operates to vindicate a constitu-
tional right in the courts, supports the constitutional rule
\* **. [T]he constitutionally significant fact is that the
Oregon government seeks to use the evidence in an Oregon
criminal prosecution. Where that is true, the Oregon con-
stitutional protections apply.'"

Id. at 518-19 (quoting State v. Davis, 313 Or 246, 253-54, 834
P2d 1008 (1992)) (alterations in original; internal citations
omitted). In the Davis case that the court in Simonsen
quoted, the court held that evidence obtained in violation of a
suspect's rights to be free of unreasonable search and seizure
under Article I, section 9, of the Oregon Constitution must be
suppressed, and explained that, to give effect to constitu-
tional rights, the government cannot "obtain a criminal con-
viction through the use of evidence obtained in violation of
[those rights]." Davis, 313 Or at 253.

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

Davis in turn relied on two earlier cases-State v.
Davis, 295 Or 227, 666 P2d 802 (1983), and State v. Isom, 306
Or 587, 761 P2d 524 (1988). In the former case, the court
noted that, although every rule of law is intended to deter
contrary conduct and is successful when it does so, deterrence
does not constitute a constitutional basis for the exclusion of
evidence. Davis, 295 Or at 234-35. Instead, the court stated,
" '[i]n demanding a trial without such evidence, the defen-
dant invokes rights personal to himself.'" Id. at 235 (quoting
State v. McMurphy, 291 Or 782, 785, 635 P2d 372 (1981)). In
the latter case, the court ordered suppression of statements
made in violation of Article I, section 12, because "the state
may not prove, over objection, any crime with unconstitution-
ally obtained evidence." Isom, 306 Or at 595.

Synthesizing the decisions that we have reviewed,
and applying our own constitutional analysis, we now set out
the basis for the requirement that police inform persons in
custody and subjected to custodial interrogation of the rights
afforded by Article I, section 12, and for excluding statements
made without the benefit of those warnings.

Article I, section 12, affords a constitutional right to
remain silent. That right is, however, subject to waiver.
Because a custodial interrogation is inherently compelling,
and to ensure the validity of a waiver of the right against self-
incrimination, Article I, section 12, requires that the police
inform a person subjected to custodial interrogation that he
or she has a right to remain silent and to consult with counsel
and that any statements that the person makes may be used
against the person in a criminal prosecution. Article I, section
12, requires those Miranda warnings to ensure that a per-
son's waiver is knowing as well as voluntary. If the police con-
duct a custodial interrogation without first obtaining a know-
ing and voluntary waiver of the suspect's rights, then they
violate the suspect's Article I, section 12, rights. To give effect
to those constitutional rights, the state is precluded from
using, in a criminal prosecution, statements made in
response to the interrogation.

With that understanding, we return to the state's
alternative argument that we should adopt a rule that per-
mits the admission of physical evidence that the police obtain

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

without the benefit of Miranda warnings. In making that
argument, the state concedes that, if the constitutional vio-
lation at issue results from "actual coercion," then all evi-
dence, including physical evidence, obtained as a result of the
violation must be excluded from evidence. See Soriano, 68 Or
App at 662-65 ("Prohibition of the use of the fruits of illegal
police activity in court is necessary to vindicate the violated
rights."); Patane, 542 US at 644 (acknowledging that Fifth
Amendment requires that physical evidence derived from
actually coerced statements must be suppressed); United
States v. Hubbell, 530 US 27, 37-38, 120 S Ct 2037, 147 L Ed
2d 24 (2000) (holding that Fifth Amendment requires that
evidence derived from coerced statements must be sup-
pressed). So, for example, if the police were to engage in
"actual coercion" to compel the answer to the question "where
is the gun located?," both the answer, "under the bed," and
the gun found in that location would be suppressed. See State
v. Miller, 300 Or 203, 709 P2d 225 (1985) (physical evidence
derived from an unconstitutional custodial interrogation
must be suppressed unless admissible on some independent
ground).7

The state contends, however, that we should reach a
different conclusion when the violation of Article I, section
12, is a "mere failure to provide Miranda warnings" relying
on the reasons persuasive to the plurality in Patane: that
such a failure does not violate a suspect's constitutional
rights and that, given the important value of reliable physi-
cal evidence, the Miranda rule should not be extended to
exclude it. It is immediately obvious that the premise of the
state's argument does not hold here. It is the Oregon Consti-
tution that requires Miranda warnings and it is the Oregon
Constitution that is violated when those warnings are not
given. When the police violate Article I, section 12, whether
that violation consists of "actual coercion" or the
failure to give the warnings necessary to a knowing and

7 In Miller, the police found physical evidence when the defendant handed
them the keys to a hotel room. Before the defendant did so, he had told the police
that he did not want to talk to them without a lawyer. The police had disregarded
that statement and continued their questioning. It was then that the defendant
handed over the keys. The court found that the defendant had asserted, and not
waived, his right to counsel under the Fifth Amendment. Id. at 224.

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

voluntary waiver, the state is precluded from using evidence
derived from that violation to obtain a criminal conviction. It
follows ineluctably that, when the police violate Article I, sec-
tion 12, by failing to give required Miranda warnings, the
state is precluded from using physical evidence that is
derived from that constitutional violation to prosecute a
defendant.8

It is now incumbent on us to apply the principles that
we have enunciated to the facts of this case. As noted, defen-
dant was in custody, in the back seat of a patrol car and hand-
cuffed, when the police subjected him to custodial interroga-
tion. Defendant had the right to remain silent and to advice
of counsel, but the police conducted their custodial interro-
gation without obtaining a valid waiver of those rights. When
they did so, the police violated Article I, section 12. That con-
stitutional violation requires suppression of both the answers
that defendant gave in response to, and the marijuana that
the police identified and seized as a result of, that
interrogation.

In response to the police officer's first unwarned
question, the officer learned that the backpack belonged to
defendant. In response to the officer's second unwarned ques-
tion, the officer learned that there was marijuana in the
backpack. With that relevant information, the officer then
immediately requested consent to search the backpack and
seized the marijuana. In this court, the state makes no argu-
ment that the request for consent to search or the seizure of
the marijuana derived from some source other than defen-
dant's answers to those unwarned questions, nor does the
state argue that, even without defendant's responses, the
police inevitably would have obtained the marijuana. Thus,
in this case, we conclude that the marijuana derived from the

: We note that the result we reach is consistent with that of other state courts
that have decided the same issue under their state constitutions. See, e.g., State v.
Peterson, 181 Vt 436, 923 A2d 585 (2007) (physical evidence obtained in violation of
Miranda rights must be excluded at trial as "fruit of poisonous tree"); Common-
wealth v. Martin, 444 Mass 213, 827 NE2d 198 (2005) (physical evidence derived
from unwarned statements presumptively excludable from evidence as "fruit" of
improper failure to provide such warnings); State v. Knapp, 285 Wis 2d 86, 700
NW2d 899 (2005) (physical evidence obtained as direct result of intentional
Miranda violation excluded as "fruit of poisonous tree").

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

violation of defendant's Article I, section 12, rights, and the
trial court erred in failing to exclude it from evidence. We
affirm the decision of the Court of Appeals in that regard.

## II. BELATED MIRANDA WARNINGS

The second question in this case is the consequence
that a violation of Article I, section 12, should have when the
police belatedly administer required Miranda warnings. The
state argues that, after the police give the required warnings,
a defendant's statements in response to further interrogation
are admissible as long as they are voluntary. Defendant
argues that the constitutional violation that occurs when the
police fail to give the warnings when initially required neces-
sitates exclusion of all statements made as a result of the ille-
gality and that that category includes statements made after
belated Miranda warnings, unless the state demonstrates,
under Hall, that, at the time the post-Miranda statements
were made, the taint of the illegality had been attenuated.

Two Supreme Court cases illustrate the range of fac-
tual circumstances that present that issue. In Oregon v.
Elstad, 470 US 298, 105 S Ct 1285, 84 L Ed 2d 222 (1985), the
police contacted a young suspect at his home to arrest him for
burglary. Before the arrest, one officer spoke with the
mother, while the other officer mentioned to the suspect that
he felt that the suspect had been involved in the burglary.
The suspect admitted that he had. The officers then placed
the suspect under arrest and took him to the police station
where they administered Miranda warnings and, when the
suspect waived his rights, interrogated him. The defendant
was charged with burglary and sought to suppress his post-
Miranda statements as the illegal "fruit" of the Miranda
violation.

The Court rejected defendant's argument. It ruled
that the admissibility of any such statement turns "solely on
whether it is knowingly and voluntarily made." Id. at 309. In
considering whether the defendant's post-Miranda state-
ments met those standards, the Court discounted whatever
psychological impact that his unwarned statements could
have had on his later waiver of his Fifth Amendment rights
and found the warned statements admissible because the

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

connection between the defendant's prior admission and his
ultimate decision to cooperate was "speculative and attenu-
ated at best." Id. at 312-14.

In 2004, the Supreme Court again explored the issue
of belated Miranda warnings in Missouri v. Seibert, 542 US
600, 124 S Ct 2601, 159 L Ed 2d 643 (2004). In that case, the
officer had made a "conscious decision" to withhold Miranda
warnings. The officer conducted the interrogation in the sta-
tion house, and the interrogation was "systematic, exhaus-
tive, and managed with psychological skill." Id. at 616. The
defendant made incriminating statements in response to the
interrogation. Then, after a pause of only 15 to 20 minutes,
the same officer, in the same place, recited the Miranda
warnings but did not advise the defendant that her prior
statements could not be used. In fact, the officer referenced
the defendant's earlier statements and used them to convince
her to repeat her earlier confesson. Justice Souter wrote for
four members of the court and concluded that all of the defen-
dant's post-Miranda statements must be suppressed, not as
the "fruit" of a prior unlawful act, but because the state had
not established that the belated Miranda warnings were
"effective." Id. at 604 (plurality opinion).

The plurality explained its reasoning as follows:

"Just as 'no talismanic incantation [is] required to satisfy
[Miranda's] strictures,' California v. Prysock, 453 US 355,
359[, 101 S Ct 2806, 69 L Ed 2d 696] (1981) (per curiam), it
would be absurd to think that mere recitation of the litany
suffices to satisfy Miranda in every conceivable circum-
stance. 'The inquiry is simply whether the warnings
reasonably "convely] to [a suspect] his rights as required by
Miranda."' Duckworth v. Eagan, 492 US 195, 203[, 109 S
Ct 2875, 106 L Ed 2d 166] (1989) (quoting Prysock, supra, at
361). The threshold issue when interrogators question first
and warn later is thus whether it would be reasonable to
find that in these circumstances the warnings could func-
tion 'effectively' as Miranda requires. Could the warnings
effectively advise the suspect that he had a real choice
about giving an admissible statement at that juncture?
Could they reasonably convey that he could choose to stop
talking even if he had talked earlier? For unless the warn-
ings could place a suspect who has just been interrogated in

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

a position to make such an informed choice, there is no prac-
tical justification for accepting the formal warnings as com-
pliance with Miranda, or for treating the second stage of
interrogation as distinct from the first, unwarned and inad-
missible segment."

Id. at 611-12 (alterations in original; footnote omitted).

The Seibert plurality identified, in the contrast
between Elstad and Seibert, a "series of relevant facts that
bear on whether Miranda warnings delivered midstream
could be effective enough to accomplish their object[.]"
Seibert, 542 US at 615. Those facts include: (1) the complete-
ness and detail of the questions and answers in the first
round of interrogation, (2) the overlapping content of the two
statements, (3) the timing and setting of the first and the sec-
ond rounds of interrogation, (4) the continuity of police per-
sonnel, (5) the degree to which the interrogator's questions
treated the second round as continuous with the first, and
(6) whether the police cautioned that the earlier unwarned
statement could not be used in any subsequent prosecution.
Id. at 615-16.

Justice Kennedy concurred in the judgment, but his
approach to the issue was different. Justice Kennedy opined
that the question-first technique "creates too high a risk that
postwarning statements will be obtained when a suspect was
deprived of knowledge essential to his ability to understand
the nature of his rights and the consequences of abandoning
them." Id. at 621 (internal quotation marks and citation
omitted). He concluded that the post-warning statements
should be excluded only when that technique is used delib-
erately. Id. at 622. When the police purposely engage in a
two-step interrogation, Justice Kennedy opined, "postwarn-
ing statements that are related to the substance of prewarn-
ing statements must be excluded absent specific, curative
steps." Id. at 621. Justice Kennedy explained that curative
measures "should be designed to ensure that a reasonable
person in the suspect's situation would understand the
import and effect of the Miranda warning and of the Miranda
waiver[ ]" and could include, for example, a substantial break
in time and circumstances or an additional warning that the

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

prior unwarned statements would likely be inadmissible. Id.
at 622.

Justice O'Connor, the author of Elstad, penned the
dissent for the four remaining members of the court. She
agreed with the plurality that the test of admissibility should
be an objective one and not determined, as Justice Kennedy
urged, by whether the police acted intentionally:

"A suspect who experienced exactly the same interrogation
as Seibert, save for a difference in the undivulged, subjec-
tive intent of the interrogating officer when he failed to give
Miranda warnings, would not experience the interrogation
any differently. Whether intentional or inadvertent, the
state of mind of the police is irrelevant to the question of the
intelligence and voluntariness of respondent's election to
abandon his rights."

542 US at 624-25 (internal quotation marks and brackets
omitted). For Justice O'Connor, the correct issue was
whether, under all the circumstances, the post-warning
statements were voluntary. Id. at 628.

Because we analyze the issue under the Oregon, and
not the United States, Constitution, we are not bound by the
Court's decisions in either Elstad or Seibert. Nevertheless,
we find the reasoning in those cases helpful because they
focus, as we must, on the source and purpose for the Miranda
requirement and the exclusion of evidence obtained when
Miranda warnings are not given as required.

As our prior discussion indicates, the Oregon
Constitution does not require the exclusion of evidence
obtained in the absence of Miranda warnings to deter illegal
police conduct. The Oregon Constitution requires Miranda
warnings to ensure that a waiver of the rights conferred by
Article I, section 12, is knowing as well as voluntary. When
the police fail to give the required warnings, a suspect's
responses to their unwarned questions must be excluded
from evidence. When the police then correct course and give
the required warnings, the relevant inquiry must be whether
the belated warnings are effective and accomplish the pur-
pose for which they are intended. The fact that the police ini-
tially violate a defendant's constitutional rights by failing to

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

give the warnings necessary to a valid waiver does not pre-
clude a defendant from later validly waiving those rights. If
the state establishes that the police accurately and effec-
tively, although belatedly, gave the suspect the information
necessary to a valid waiver of the right against self-incrimi-
nation, then, under the Oregon Constitution, a suspect's sub-
sequent voluntary statements will be admissible.9 In arriving
at that conclusion, we adopt the reasoning and the analysis of
the Siebert plurality as our own.

When the police give Miranda warnings at the time
that they are first required, the constitution does not demand
that the state establish that the warnings were effective. The
state need only establish that the police recited the warnings
completely and coherently.10 The problem that Seibert dem-
onstrates, however, is that when the police question first and
warn later, their exhibition and exercise of authority and vio-
lation of the defendant's constitutional rights may communi-
cate to a defendant, as the Court believed they did in that
case, that, before the defendant will be released, he or she
must answer the questions asked. In that circumstance, the
police not only fail to provide the defendant with the infor-
mation necessary to a valid waiver-that the defendant has a
right to remain silent and to confer with an attorney-the
police also convey a contrary message. In that situation,
when the police later administer Miranda warnings, we can-
not assume that the mere recitation of Miranda warnings is
sufficient to serve the intended informative function.

That being said, we note that Seibert is at one end of
the range of the factual circumstances that present the issue
that we address. Elstad is at the other. Not every instance in
which the police question first and warn later communicates
a mixed message. Whether and to what extent police officers

9 Voluntariness of course is always a requirement for admission of a defen-
dant's incriminating statements. Even warned statements may be inadmissible if
they are not otherwise voluntary. See State v. Montez, 309 Or 564, 572, 789 P2d
1352 (1990) (assessing voluntariness of statements made after warnings were
administered and defendant made "equivocal" remarks regarding request to con-
sult with attorney).

1º We acknowledge, of course, that a defendant is entitled to demonstrate
(whether by defendant's own testimony or otherwise) that the defendant's waiver
was not knowing. So, for example, a defendant may demonstrate that he or she did
not understand the warnings due to cognitive or linguistic limitations.

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

who fail to administer Miranda warnings before beginning
custodial interrogation obfuscate or contradict the informa-
tion that Miranda warnings are intended to convey and
whether and to what extent those officers later correct that
misinformation are issues that trial courts must confront and
determine. In doing so, courts should consider all relevant
circumstances, including those facts to which the plurality in
Seibert pointed-the completeness and detail of the ques-
tions and answers in the first round of interrogation, the
overlapping content of the statements given by the suspect,
the timing and setting of the first and the second interroga-
tion sessions, the continuity of police personnel, the degree to
which the interrogator's questions treated the second round
of interrogation as continuous with the first, and whether the
police cautioned that the earlier unwarned statement could
not be used in any subsequent prosecution.11

In this case, the Court of Appeals used many, if not
all, of those facts in its "fruit of the poisonous tree," or "exploi-
tation," analysis. The difference between that court's analy-
sis and our own is not in the facts considered but in the stick
by which we require that they be measured. In our analysis,
the test of the efficacy of the belated warnings is an objective
one. A court considers the factual circumstances to determine
the accuracy and effectiveness of the information that the
police convey; a court does not use those circumstances to
attempt to determine the psychological effect that the partic-
ular police course of conduct had on the particular defendant
or whether the initial failure to warn caused the particular
defendant to make the post-Miranda statements.

Although neither party in this case advocates for the
view articulated by Justice Kennedy in Seibert-that the
admissibility of statements that a defendant makes after
Miranda warnings are belatedly given should be determined
by whether the police intentionally engaged in a two-step
interrogation process-we think it helpful to state explicitly

11 We note that other state courts applying their state constitutions also have
used multi-factor tests to determine the admissibility of post-Miranda statements.
See State v. O'Neill, 193 NJ 148, 180-81, 936 A2d 438 (2007); People v. Paulman,
5 NY3d 122, 130-31, 833 NE2d 239 (2005); and State v. Northern, 262 SW3d 741,
763-64 (Tenn 2008).

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

that we reject that approach. Our focus is not on the subjec-
tive intent of the police but on the objective message that the
police actually convey by the techniques that they use and
the warnings that they give. That does not mean, however,
that the deliberateness with which the police act is entirely
irrelevant. In Isom, for instance, the defendant established
that the police had purposely disregarded his request for
counsel, and this court did not hesitate to hold that the state-
ments that he made thereafter were obtained in violation of
Article I, section 12. 306 Or at 595. If the police purposely
obscure the legal and practical significance of a belated
Miranda admonition, as they did in Seibert, it will not be dif-
ficult for a court to determine under the objective test that we
describe today that the police did not accurately and effec-
tively deliver the information necessary to a valid waiver of
Article I, section 12, rights.

Finally, it remains for us to decide whether the trial
court in this case erred in admitting defendant's post-
Miranda statements. To do so we must review the facts in
more detail than initially stated.

This case arose from a routine roadside stop of a car
to investigate a traffic violation and possible driving under
the influence of intoxicants. Defendant was a passenger in
the car, which a friend was driving. Officer Stoneberg made
the stop; a second officer, Officer Espelien, arrived shortly
afterward. Stoneberg approached the driver's side of the car
and, as he did, smelled a strong odor of fresh marijuana.
Espelien approached the passenger's side and initially
waited near the rear corner of the car while Stoneberg talked
to the driver. Espelien, likewise, smelled a very strong odor of
fresh marijuana. Both officers thought that the smell was
strongest towards the trunk area of the car. Espelien
approached defendant (the passenger) to ask him for identi-
fication. Defendant initially lied about who he was but then
gave Espelien the correct information. Espelien discovered
an outstanding warrant for defendant. Stoneberg therefore
arrested defendant, handcuffed him, and had him sit in the
back of the patrol car while he completed his investigation.
Stoneberg did not give Miranda warnings to defendant at
that point because he ordinarily does not conduct any kind of

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

investigation or ask questions of a person arrested on an out-
standing warrant.

Stoneberg continued his investigation of the driver.
He asked her if there were any illegal drugs or weapons in
the car. She said no. Stoneberg then asked her for, and the
driver gave, consent to search the car. In the course of the
search, Stoneberg opened the car trunk, at which point the
smell of fresh marijuana became even stronger. The only
thing in the trunk was a backpack. According to Stoneberg,
the smell from the backpack "is what really hit [him]" and,
upon lifting it, he could tell that the backpack was not empty.
At that point, given the smell and the weight of the backpack,
Stoneberg believed that there was a substantial quantity of
marijuana in it. Stoneberg asked the driver if the backpack
was hers and if he could open it, and she told Stoneberg that
it did not belong to her. He asked her who owned it, and she
said she did not know.

Stoneberg then walked to the patrol car with the
backpack, opened the back door, and asked defendant if the
backpack belonged to him. Defendant said yes. Stoneberg
asked defendant if there was marijuana inside, and defen-
dant said yes. Stoneberg asked if he could search the back-
pack, and defendant told Stoneberg he could. Stoneberg then
searched the backpack while standing by the patrol car, in
defendant's presence, and found two folded-down grocery
bags, each containing fresh marijuana.

After searching the backpack, Stoneberg walked
over to Espelien and consulted with him. After about five
minutes, Stoneberg went back to the patrol car to ask defen-
dant more questions about the marijuana. At that point, he
gave defendant Miranda warnings. He asked defendant if he
understood his rights, and defendant said he did. Defendant
waived his rights and agreed to answer Stoneberg's ques-
tions. Stoneberg asked defendant several questions about the
marijuana. In particular, Stoneberg asked defendant where
he got the marijuana; defendant explained that he had gotten
it in Tualatin the day before. Stoneberg asked how much
marijuana was in each bag; defendant told him that each
bag contained about a quarter of a pound of marijuana.
Stoneberg asked how much the marijuana cost; defendant

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

said that he had paid a total of $2,200 for the marijuana.
Stoneberg asked defendant if he was a middleman. Defen-
dant answered yes. Eventually, Stoneberg told defendant
that he would like to know more about his middleman role. In
response, defendant told Stoneberg that he wanted a lawyer.
Neither Stoneberg nor Espelien asked defendant any further
questions. The post-Miranda questions took place intermit-
tently over a 15- to 20-minute time period.

Both officers described their contact with defendant
as conversational in tone. Espelien further described defen-
dant, once defendant gave his correct identification to
Espelien, as seeming apologetic and even ashamed of the cir-
cumstances. Defendant remained "very cooperative" and
willingly answered questions until, when Stoneberg asked
for more information about his role as a middleman, he
invoked his right to counsel.

We now consider all those facts to determine
whether the Miranda warnings, when given, accurately and
effectively conveyed the information necessary to a knowing
and voluntary waiver of the right against self-incrimination.
We first observe that there was a marked difference in the
questioning before and after Stoneberg administered the
Miranda warnings. The unwarned questions were routine in
nature and consumed less than a minute of time.12 The sec-
ond warned questions were significantly more detailed and
probing. This was not a situation, like that in Seibert, in
which the police conducted extensive questioning and elicited
significant detailed facts in the first interrogation session
and then repeated that questioning post-Miranda.

Second, although Stoneberg posed the second set of
questions shortly after the first set, there was a break in the
questioning. Given that the first set of questions consumed
less than a minute, the five-minute break between questions,
followed by the Miranda warning, was an objective indica-
tion that the situation had changed and was governed by new
rules. Again, this was not a circumstance, like that in Seibert,
in which both interrogation sessions were protracted and

12 Given the brevity of the initial three questions that Stoneberg asked, and the
one word answers that defendant gave in reply, the total amount of time involved
for all three questions would have been a matter of perhaps only 30 seconds or less.

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

conducted at the police station. In such a circumstance, a
short break between interrogation sessions would not be of
the same import.

Third, although Stoneberg did not caution defendant
that his earlier unwarned statements could not be used in
any subsequent proceeding, neither did he point out to defen-
dant, as did the officer in Seibert, that defendant had already
made incriminating disclosures that provided all of the infor-
mation that Stoneberg needed. And in fact, at least some of
the information that Stoneberg had obtained-that the back-
pack contained marijuana-was obviously discernable from
another source-the odor of the backpack itself. When an offi-
cer does caution a defendant that the unwarned statements
that the defendant made may not be admissible, that caution
may militate (indeed, often will) in favor of finding that the
officer's belated Miranda warnings were effective, but such a
caution is not necessary to that result.

Fourth, although defendant was under arrest and
handcuffed when Stoneberg questioned him and was thus in
inherently compelling circumstances, he was not subjected to
additional coercion. The police conducted their questioning in
a conversational tone and it was of short duration.

The facts that we have outlined lead us to conclude
that the belated Miranda warnings that Stoneberg gave
accurately and effectively communicated that defendant had,
from that time forth, a right to remain silent. We therefore
agree with the trial court, although for different reasons, that
defendant's post-Miranda statements should have been
admitted.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.

LINDER, J., concurring.

I write separately to explain my reasons for concur-
ring in the majority decision, both with respect to the physi-
cal evidence that police obtained when defendant, before
being given Miranda warnings, consented to the search of his

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

backpack and with respect to the statements that defendant
made after being given Miranda warnings.

In urging that the marijuana seized from defen-
dant's backpack should not be suppressed, the state has
advanced an ambitious argument seeking a per se rule that
physical evidence is never subject to exclusion under Article
I, section 12, reasoning that the protection against self-
incrimination is directed to testimonial in-court evidence
only. I concur in the majority's rejection of that per se rule. As
this court has described it, our state-law based Miranda rule
is "a judicial means" to secure the guarantee against com-
pelled self-incrimination, one that this court has devised
because it is appropriate for this court "to specify the proce-
dure by which [Article I, section 12's guarantee against com-
pelled testimony] is to be effectuated." State v. Mains, 295 Or
640, 645, 669 P2d 1112 (1983).1 Thus, the rule is constitution-
ally grounded, even if Miranda warnings and waiver of them
are procedures that the constitution does not itself mandate.
When those procedural requirements are violated, we prop-
erly ask whether any subsequently obtained evidence, phys-
ical or testimonial, is sufficiently a product of that violation to
require suppression along with any statements made in
direct response to unwarned custodial interrogation. And
because the Miranda doctrine is a judicially devised proce-
dural protection, one this court has adopted as a matter of
state law, it falls to this court to determine whether and

] I accept that this court has adopted Miranda warnings as an independent
requirement under Article I, section 12. The pedigree of that doctrine is, however,
uncertain. In the one case in which the court attempted to decide, consistently with
our announced methodology for interpreting original provisions of our constitution,
whether a Miranda-type rule could be divined from Article I, section 12, three
members (of a six-member court) concluded that the answer was no, while three
others believed the answer was yes, but only two believed that the rule could
extend to anything other than formal custody or arrest. See State v. Smith, 301 Or
681, 725 P2d 894 (1986). Since then, without exploring the interpretative basis for
an independent state Miranda rule, this court has, for the most part, assumed the
existence of that rule. See, e.g., State v. Magee, 304 Or 261, 744 P2d 250 (1987) (per
curiam decision, with three members concurring). But see State v. Isom, 306 Or
587, 592, 761 P2d 524 (1988) ("majority of this court has not agreed whether
Miranda-type warnings are required under the Oregon Constitution"); State v.
Kell, 303 Or 89, 734 P2d 334 (1987). It may well be that, at some point, in deciding
novel questions about the scope or content of our state Miranda rule, this court will
have to engage in that interpretative exercise. For present purposes, however, it is
unnecessary to do so.

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

under what circumstances to exclude evidence to serve the
objectives of that procedural rule.

The difficulty here is that the state's argument on
review stops with its invitation to adopt a per se rule of no
exclusion. The state does not explore what test this court
should adopt to determine whether and when physical evi-
dence obtained after a Miranda violation should be subject to
exclusion. Because of that omission, I concur in the result
that the majority reaches. I write separately, however, to
identify the limits of the majority's reasoning and to point out
the work that remains for future cases.

The majority announces a "derives from" test to
determine under what circumstances consent to search,
when that consent follows a Miranda violation, must be sup-
pressed. 348 Or at 475-76. The starting point of such a test
should be the underlying Miranda violation, because the
nature and extent of that violation necessarily bear on
whether and to what extent other evidence that police obtain
is connected to that violation.

Here, the investigating officer asked defendant a
total of three questions without first giving Miranda warn-
ings. The first question was whether defendant owned the
backpack. At trial, and continuing through the layers of
appeal, the state has conceded that the officer was required
to give defendant Miranda warnings and obtain a waiver
before asking that question. For present purposes, I will
assume that concession is correct.2

2 It is worth noting, however, that the issue is potentially a close one. In many
circumstances, when police conducting a field investigation need to ascertain the
owner of property in order to ask for consent to search that property, their inquiry
may not qualify as "interrogation" that must be preceded by Miranda warnings.
Here, the officer needed to determine who owned the backpack to ask for consent to
search it, among other reasons. The backpack could have belonged to the driver,
even though she denied that it did. It could have belonged to defendant. It could
also have belonged to the driver's parents, who owned the car, or to some other
third party. In such a circumstance, attempting to determine the identity of the
owner may potentially qualify as the kind of routine questioning normally atten-
dant to investigatory activities, or even to custody and arrest, that does not trigger
the requirement of Miranda warnings. See generally Wayne R. LaFave, 2 Criminal
Procedure § 6.7(b) (3d ed 2007) (general investigatory questions not ordinarily con-
sidered interrogation; citing representatives cases). In an appropriate case, that
issue may merit closer attention than it has received in this case.

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

The officer's second question was whether there was
marijuana in the backpack. That question was, quintessen-
tially, interrogation. Any reasonable officer asking if a con-
tainer has marijuana in it would know that the question
could elicit an incriminating response-i.e., an inculpatory or
an exculpatory response that the prosecution might seek to
use at trial.3 To lawfully ask defendant-who was under
arrest-that question, the officer was required to advise
defendant of his Miranda rights. The officer did not do so.

The officer's third question asked if defendant would
consent to a search of the backpack. That was not impermis-
sible interrogation. Asking for consent to search is a mere
request for permission. The answer either gives permission
or it does not; the response is neither inculpatory or exculpa-
tory (although, to be sure, the results of the search can be).
With apparent unanimity, courts throughout the country
that have considered the question have held that asking for
consent to search is not interrogation within the meaning of
the Miranda doctrine. See, e.g., U.S. v. Smith, 3 F3d 1088,
1098 (7th Cir 1993), cert den, 510 US 1061 (1994) (so observ-
ing; citing representative cases). Defendant has never con-
tended to the contrary in this case.

Thus, at best for defendant, the Miranda violation in
this case consisted of two short questions, each of which
called for a one word (yes or no) response. In analyzing
whether the physical evidence seized pursuant to defendant's
consent was "derived" from that violation, the majority con-
cludes-with only brief discussion-that it was. 348 Or at
475-77. It is unclear what test the majority's "derived from"
test entails. The majority does not explain whether the test
turns on causation, or exploitation, or some other way in
which an initial illegality may be said to "taint" evidence that
police gather after that illegality. Knowing the nature of the
"derives from" test that applies is important. The majority
appears to conclude that there is, in fact, a "derived from"

3 "Interrogation," both for federal and state law purposes, is express question-
ing, as well as words or actions on the part of police (other than those normally
attendant to arrest and custody), that the police should know are reasonably likely
to produce an incriminating response, whether inculpatory or exculpatory. State v.
Scott, 343 Or 195, 202, 166 P3d 528 (2007) (adopting test from Rhode Island v.
Innis, 446 US 291, 301, 301 n 5, 100 S Ct 1682, 64 L Ed 297 (1980)).

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

connection between the illegal questioning and defendant's
consent to search in this case, and therefore places the bur-
den on the state to disprove that connection. 348 Or at 476-
77. At the least, if the state is to have that burden, it must
know what it must disprove. As important, at some point,
both litigants and lower courts are entitled to meaningful
guidance as to the analysis that applies. Compare Wong Sun
v. United States, 371 US 471, 487-88, 83 S Ct 407, 9 L Ed 2d
441 (1963) ("but for" causation not enough to establish that
consent to search is the product of a prior illegality), with
State v. Hall, 339 Or 7, 34-35, 115 P3d 908 (2005) (defendant
need only show a "minimal causal nexus" between consent to
search and prior illegality).

The state's argument, as advanced in this court,
examines none of those issues, however.4 Instead, as I have
already noted, the state argues only that, as a per se matter,
physical evidence is never subject to suppression under
Article I, section 12, no matter how directly and immediately
derivative of a Miranda violation. In this particular case,
given the fact that the state has made no contrary argument,
I am prepared to conclude that, under the particular circum-
stances of this case, the officer's request to search was part
and parcel of the impermissible unwarned questioning, at
least enough to place the burden on the state to point to the
circumstances that either legally or factually break that con-
nection. Because the state has not done so, I concur. But it
remains for future cases to explore, in a way that we do not in
this case, when evidence obtained after a Miranda violation
properly can be said to "derive from" that violation.

With respect to defendant's subsequent, post-
Miranda warning statements, the majority essentially

4 The state also has not argued on review that the officers had probable cause
to believe that the backpack contained marijuana, based solely on the odor of mari-
juana coming from it, and that they could therefore seize and search it under the
automobile exception. See State v. Meharry, 342 Or 173, 149 P3d 1155 (2006) (dis-
cussing that exception to the warrant requirement). The prosecution relied on that
theory in the trial court, and the trial court made an explicit finding that the auto-
mobile was mobile at the time of the stop. Even though the trial court may have
relied on that exception as an independent and alternative ground for its ruling,
the state did not raise the automobile exception in the Court of Appeals. The state
therefore cannot (and, as noted, does not) rely on that exception in this court. See
Tarwater v. Cupp, 304 Or 639, 644, 748 P2d 125 (1988) (on review in this court,
party may not argue alternative ground for affirmance of trial court if that argu-
ment was not presented to Court of Appeals).

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

adopts the test articulated by the plurality decision in
Missouri v. Seibert, 542 US 600, 124 S Ct 2601, 159 L Ed 2d
643 (2004). 348 Or at 480-81. That test asks whether, viewed
from the perspective of a reasonable person, the Miranda
warnings that police give after an initial Miranda violation
were effective for purposes of informing a suspect of his rights
and obtaining a knowing and voluntary waiver of those
rights.

I have no objection to that test. I see, ultimately, lit-
tle or no difference in the "totality of the circumstances"
analysis used to analyze that issue and the totality of the cir-
cumstances test that has long been in place to analyze the
voluntariness of a confession following prior illegal conduct
by police. See, e.g., State v. Wolfe, 295 Or 567, 572, 669 P2d
320 (1983) (drawing from totality of circumstances test in
Brown v. Illinois, 422 US 590, 603-04, 95 S Ct 2254, 45 L Ed
2d 416 (1975)).

What is important to emphasize, however, is the dis-
tinctive context in which the Seibert plurality fashioned that
test. The Seibert plurality identified that context in the very
first sentence of the opinion: the case involved what had
become, at least at the time, an increasingly popular "police
protocol for custodial interrogation that calls for giving no
warnings of the rights to silence and counsel until interroga-
tion has produced a confession," after which warnings are
given and police then "lead[ ] the suspect to cover the same
ground a second time." 542 US at 604. As the plurality noted,
"the reason that question-first [technique] is catching on is as
obvious as its manifest purpose, which is to get a confession
the suspect would not make if he understood his rights at the
outset[.]" Id. at 613. The plurality therefore, throughout
its opinion, expressly tied its "effective waiver" test to the
question-first technique of interrogation-e.g., a confession
"so obtained" (id. at 611); one obtained through the use of a
"question first and warn later" protocol (id.); and one in
which Miranda warnings are "inserted in the midst of coor-
dinated and continuing interrogation" (id. at 613). That dis-
tinctive context also was what led the plurality to observe
that belated Miranda warnings might be unlikely to provide
a defendant with the knowledge necessary for a valid waiver,
reasoning that it "would ordinarily be unrealistic to treat two
spates of integrated and proximately conducted questioning

<!-- PageBreak -->

<!-- PageHeader="State v. Vondehn" -->

as independent interrogations subject to independent evalu-
ation simply because Miranda warnings formally punctuate
them in the middle." Id. at 614.

The plurality in Seibert also expressly contrasted the
circumstances before it with those that had been involved in
Oregon v. Elstad, 470 US 298, 105 S Ct 1285, 84 L Ed 2d 222
(1985), noting that the Court in Elstad had taken care to
characterize the officer's initial failure to give Miranda warn-
ings in that case as an "oversight." Seibert, 542 US at 614.
The plurality considered the facts in Seibert to be "[a]t the
opposite extreme" and by "any objective measure" to reveal a
police strategy adapted to undermine the effectiveness of the
Miranda warnings. Id. at 616. The plurality observed the
"unwarned interrogation was conducted in the station house,
and the questioning was systematic, exhaustive, and man-
aged with psychological skill. When the police were finished
there was little, if anything, of incriminating potential left
unsaid." Id. In addition, the circumstances of the questioning
did not change in any meaningful way between the initial
round of questioning and the later round. And when police
resumed their questioning and asked the defendant to cover
the same ground a second time, they "fostered" the impres-
sion that the later round was a mere continuation of the first
by reminding the defendant of the confession that she had
already given them. Id.

As other courts have emphasized in adopting the
equivalent of the Seibert plurality's "effective waiver" test, an
examination of the totality of the circumstances for an objec-
tive person's perception of those circumstances permits no
"bright-line rule." State v. O'Neill, 193 NJ 148, 181, 936 A2d
438, 457 (2007). But because the test focuses on the circum-
stances as they would be objectively perceived, we should
acknowledge that the danger of rendering Miranda warnings
a nullity is greatest at the Seibert end of the factual spec-
trum. Likewise, that danger is at its lowest ebb at the Elstad
end of the factual spectrum, where no question-first tech-
nique or protocol objectively appears to have been at work,
where the initial questioning is minimal and the unwarned
statements are more limited and less detailed than later
ones, and where, given what went before the warnings, there

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 462 (2010)" -->

is some substantial break in the circumstances.5 The facts of
this case readily bring it within the class of cases in which,
objectively, the circumstances of the initial Miranda viola-
tion are not such that they rendered the belated Miranda
warnings or defendant's waiver of his Miranda rights ineffec-
tive. The majority reaches the correct conclusion in that
regard.

For those reasons, I respectfully concur.

Balmer and Kistler, JJ., join in this concurrence.

5 In a case that falls on the Elstad end of the spectrum, Miranda warnings
themselves will often provide the needed substantial "break" in the circumstances.
In a case that falls on the Seibert end of the spectrum, Miranda warnings alone
may rarely suffice. In such a case, among other possible attenuating circum-
stances, advice that the earlier unwarned statements probably are not admissible
against the defendant is a significant intervening factor that will weigh heavily on
the side of rendering the subsequent warned statements admissible.