State v. Dean

Under Article I, section 12, of the Oregon Constitution, police may continue speaking with a defendant who has invoked the rights to remain silent or to counsel only to ask questions or make statements that are “normally attendant to arrest and custody.” State v. Schmidtke, 290 Or App 880, 885, 417 P3d 563 (2018). Any statements obtained in violation of those rights must be suppressed.

Defendant was convicted of first-degree robbery, second-degree kidnapping, and possession of a firearm as a felon. On appeal, defendant argued that the trial court erred when it denied his motion to suppress incriminating statements made after invoking his right to counsel. Defendant asserted “that [the detective’s] statements to defendant immediately after defendant invoked his right to counsel constituted an interrogation, which amounted to a violation of defendant’s Article I, section 12, right against self-incrimination.” Defendant further contends that “his subsequent waiver of his right to counsel was invalid because it was a product of that violation.” In response, the state argued that the detective’s post-invocation statements “did not constitute interrogation.” The right against self-incrimination protected under Article I, section 12, of the Oregon Constitution “extends to custodial interrogations and includes a derivative right to have counsel present during questioning.” State v. Scott, 343 Or 195, 200, 166 P3d 528 (2007). “Fundamental to protect the derivative right to counsel is that, when a suspect in custody makes an unequivocal request to speak with a lawyer, all police interrogation must cease.” State v. Fink, 285 Or App 302, 312, 395 P3d 934 (2017). An officer’s statements were interrogation if those statements were “likely to elicit some type of incriminating response.” State v. Boyd, 360 Or 302, 319, 380 P3d 941 (2016). The Court concluded that the detective’s post-invocation statements were an interrogation. Thus, the Court held that “[t]he trial court erred in denying defendant’s motion to suppress.” Reversed and remanded.