State v. Benton

“An informant is acting on behalf of the state when... the police are ‘directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the informant’s activities’ to render the informant a state agent.” State v. Smith, 310 Or 1, 13 (1990).

Defendant confessed to another adult in custody (“Layman”) who lived in the same unit as him while awaiting trial. Layman wanted to be an informant, and after meeting with the prosecution three times, he entered into a cooperation agreement. Defendant argued that Layman had acted as the State’s agent when he questioned Defendant, which violated Article I, section 11 of the Oregon Constitution. The Court of Appeals focused on the “objective manifestations” the prosecution made to Laymen that made him an agent and reversed the trial court. Defendant argued that the trial court erred in denying his motion to suppress Layman’s testimony because Layman became a state agent on four different occasions. “An informant is acting on behalf of the state when... the police are ‘directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the informant’s activities’ to render the informant a state agent.” State v. Smith, 310 Or 1, 13 (1990). The Court applied the Smith three-factor test and used State v. Sines, 359 Or 41 (2016), to provide additional guidance and clarification. The Court found that by the end of the second meeting, the State’s actions had encouraged Layman to question Defendant and sufficiently guided him on what to ask, thus making Layman a state agent. Affirmed in part, reversed in part and remanded.