State v. Swan
363 Or. 121, 420 P.3d 9 (2018)
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Rule of Law:
When a suspect's consent to a breath test is obtained immediately following a flagrant violation of the suspect's invoked Article I, section 12, right to counsel, the consent and resulting test evidence must be suppressed as derivative of the constitutional violation. Oregon's implied consent law does not create an independent source for the evidence that purges the taint of the preceding illegality.
Facts:
- Officer Enz encountered defendant Swan near a traffic accident and observed signs of intoxication.
- After Swan performed poorly on field sobriety tests, Officer Enz arrested him for DUII and read him his Miranda rights.
- In response to the Miranda warnings, Swan's first response was that he wanted to talk to his attorney, unequivocally invoking his right to counsel.
- At the precinct, Swan was given an opportunity to call his lawyer.
- Immediately after the phone call, Officer Enz proceeded to ask Swan 28 questions as part of a DUII Interview Report.
- Directly following the 28-question interview, Officer Enz asked Swan if he would take a breath test.
- Swan again requested to speak with his attorney before answering, but Officer Enz told him he had already been given ample time.
- Swan then consented to the breath test, which revealed a blood alcohol content of .18.
Procedural Posture:
- The state charged Swan with DUII and reckless driving in the trial court.
- Swan filed motions to suppress his statements and the breath test results, arguing violations of his state constitutional right to counsel.
- The state conceded that questioning Swan after he invoked his right to counsel violated Article I, section 12, but argued only the answers should be suppressed.
- The trial court denied the motion to suppress the breath test results, and Swan was convicted following a stipulated facts trial.
- Swan, as appellant, challenged the conviction in the Oregon Court of Appeals.
- The Court of Appeals affirmed the trial court's judgment, finding the breath test did not derive from the constitutional violation.
- The Oregon Supreme Court granted Swan's petition for review.
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Issue:
Does a suspect's consent to a breath test, given immediately after an officer violates the suspect's invoked Article I, section 12, right to counsel by asking 28 interview questions, require suppression of the breath test results as evidence derived from the constitutional violation?
Opinions:
Majority - Kistler, J.
Yes, the breath test results must be suppressed as evidence derived from the constitutional violation. The court found that Swan's consent to the breath test was not sufficiently attenuated from the preceding, conceded violation of his Article I, section 12, right to counsel. Applying the factors from State v. Jarnagin, the court determined that the violation was flagrant and repeated, as the officer questioned Swan immediately after he invoked his right to counsel. There was no break in time, place, or custody between the illegal interrogation and the request for consent, creating a seamless continuum. The state, which bears the burden of proof, failed to show how the illegal questioning did not affect Swan's subsequent decision to consent, especially since the questions and answers were not in the record. The officer's refusal of Swan's second request for counsel, just before the test, reinforced the violation rather than dissipating its taint. The court also rejected the state's argument that the implied consent law provided an independent source for the evidence, holding that the statute preserves a suspect's right to refuse the test, and a decision to submit that is the product of a constitutional violation is invalid.
Analysis:
This decision reinforces the exclusionary rule under Article I, section 12 of the Oregon Constitution, particularly for physical evidence obtained via consent following a Miranda violation. The court's analysis emphasizes that a flagrant violation, such as ignoring a direct invocation of the right to counsel, is more likely to taint subsequent consent than a good-faith failure to provide warnings. By rejecting the state's implied consent theory, the court clarifies that this statutory scheme does not override constitutional protections; the choice to submit to a test must not be the product of unconstitutional coercion. This precedent strengthens the right to counsel for DUII suspects and places a heavy burden on the state to prove attenuation after a clear constitutional violation.
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