voluntariness inquiry in Oregon

2010Apart from the voluntariness inquiry described above, this court will require suppression of evidence obtained following an initial unlawful detention if the evidence is the “fruit of the poisonous tree.” See Warner, 284 Or at 166 , citing Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963) (discussing “fruit of the poisonous tree” doctrine); Quinn, 290 Or at 396-97 (applying Wong Sun “fruit of the poisonous tree” doctrine under Oregon Constitution).

2010Apart from the voluntariness inquiry described above, this court will require suppression of evidence obtained following an initial unlawful detention if the evidence is the “fruit of the poisonous tree.” See Warner, 284 Or at 166 , citing Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963) (discussing “fruit of the poisonous tree” doctrine); Quinn, 290 Or at 396-97 (applying Wong Sun “fruit of the poisonous tree” doctrine under Oregon Constitution).

2014In particular, the majority relied on State v. Rodriguez, 317 Or 27 , 854 P2d 399 (1993), and State v. Kennedy, 290 Or 493 , 624 P2d 99 (1981), noting that those cases had borrowed from the exploitation analysis that the United States Supreme Court had announced in Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963), to analyze whether Article I, section 9, required sup- pression of evidence obtained through voluntary consent searches.6 Although neither Rodriguez nor Kennedy required suppression on the facts of those cases, the majority in Hall noted that both cases had

2014In particular, the majority relied on State v. Rodriguez, 317 Or 27 , 854 P2d 399 (1993), and State v. Kennedy, 290 Or 493 , 624 P2d 99 (1981), noting that those cases had borrowed from the exploitation analysis that the United States Supreme Court had announced in Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963), to analyze whether Article I, section 9, required suppression of evidence obtained through voluntary consent searches. 6 Although neither Rodriguez nor Kennedy required suppression on the facts of those cases, the majority in Hall noted that both cases had a

2013In particular, the majority relied on State v. Kennedy, 290 Or 493 , 624 P2d 99 (1981), and State v. Rodriguez, 317 Or 27 , 854 P2d 399 (1993), noting that those cases bor- rowed from the exploitation analysis that the United States Supreme Court announced in Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963), to analyze whether Article I, section 9, required suppression of evidence obtained through valid consent searches.2 Although neither Kennedy nor Rodriguez required suppression on the facts of those cases, the majority in Hall noted that both cases 2 The majority a

2010Apart from the voluntariness inquiry described above, this court will require suppression of evidence obtained following an initial unlawful detention if the evidence is the "fruit of the poisonous tree." See Warner, 284 Or. at 166 , 585 P.2d 681 , citing Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963) (discussing "fruit of the poisonous tree" doctrine); Quinn, 290 Or. at 396-97 , 623 P.2d 630 (applying Wong Sun "fruit of the poisonous tree" doctrine under Oregon Constitution).

2013In particular, the majority relied on State v. Kennedy, 290 Or 493 , 624 P2d 99 (1981), and State v. Rodriguez, 317 Or 27 , 854 P2d 399 (1993), noting that those cases bor- rowed from the exploitation analysis that the United States Supreme Court announced in Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963), to analyze whether Article I, section 9, required suppression of evidence obtained through valid consent searches.2 Although neither Kennedy nor Rodriguez required suppression on the facts of those cases, the majority in Hall noted that both cases 2 The majority a

2013In particular, the majority relied on State v. Kennedy, 290 Or 493 , 624 P2d 99 (1981), and State v. Rodriguez, 317 Or 27 , 854 P2d 399 (1993), noting that those cases borrowed from the exploitation analysis that the United States Supreme Court announced in Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963), to analyze whether Article I, section 9, required suppression of evidence obtained through valid consent searches.2 Although neither Kennedy nor Rodriguez required suppression on the facts of those cases, the majority in 2 The majority also discussed and disavowed p

2023We reach the same conclusion under the Fourth Amendment, as the voluntariness test under federal law “is essentially the same as the test under the Oregon Constitution[.]” Tate, 315 Or App at 761 .

2021I cannot join the majority in its reliance upon State v. Belle, 281 Or App 208, 213 , 383 P3d 327 (2016), as the 840 State v. Center power-assist the majority needs to leap from the causal link between Schmidt’s question and defendant’s answer to the conclusion that the answer was improperly coerced.

2021I cannot join the majority in its reliance upon State v. Belle, 281 Or App 208, 213 , 383 P3d 327 (2016), as the 840 State v. Center power-assist the majority needs to leap from the causal link between Schmidt’s question and defendant’s answer to the conclusion that the answer was improperly coerced.

2020Furthermore, the legislative Cite as 306 Or App 71 (2020) 85 history does not suggest either a voluntariness requirement or that the legislature was using a term of art when discuss- ing what it means when a defendant “fails to appear” in this context.

2010Apart from the voluntariness inquiry described above, this court will require suppression of evidence obtained following an initial unlawful detention if the evidence is the "fruit of the poisonous tree." See Warner, 284 Or. at 166 , 585 P.2d 681 , citing Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963) (discussing "fruit of the poisonous tree" doctrine); Quinn, 290 Or. at 396-97 , 623 P.2d 630 (applying Wong Sun "fruit of the poisonous tree" doctrine under Oregon Constitution).

2010Apart from the voluntariness inquiry described above, this court will require suppression of evidence obtained following an initial unlawful detention if the evidence is the “fruit of the poisonous tree.” See Warner, 284 Or at 166 , citing Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963) (discussing “fruit of the poisonous tree” doctrine); Quinn, 290 Or at 396-97 (applying Wong Sun “fruit of the poisonous tree” doctrine under Oregon Constitution).

2006ORS 813.230(1). 2 In a memorandum of additional authorities, the state also suggests that, under State v. Randant, 341 Or 64 , 136 P3d 1113 (2006), the standard for determining the voluntariness of the waiver of the right to counsel is necessarily lower when a defendant is not waiving the right to be represented by counsel “at trial.” Thus, the state suggests that a Mey rick-type determination of whether a defendant understands the dangers of self-representation is necessary only if a defendant seeks to proceed pro se at trial and not if a defendant seeks to proceed pro se during any pretrial

2006ORS 813.230(1). 2 In a memorandum of additional authorities, the state also suggests that, under State v. Randant, 341 Or 64 , 136 P3d 1113 (2006), the standard for determining the voluntariness of the waiver of the right to counsel is necessarily lower when a defendant is not waiving the right to be represented by counsel “at trial.” Thus, the state suggests that a Mey rick-type determination of whether a defendant understands the dangers of self-representation is necessary only if a defendant seeks to proceed pro se at trial and not if a defendant seeks to proceed pro se during any pretrial

2002As we said in State v. Stanley, 139 Or App 526, 534 , 912 P2d 948 (1996), “Unlike a Voluntariness’ analysis, which focuses on the person giving consent, the dispositive consideration in the ‘exploitation’ inquiry is the prior illegality’s effect on the police.” The dissent concedes as much elsewhere in its opinion when it correctly says that “exploitation concerns whether the police took advantage of the circumstances of their unlawful conduct.” 183 Or App at 66 (Deits, C.

2002As we said in State v. Stanley, 139 Or App 526, 534 , 912 P2d 948 (1996), “Unlike a Voluntariness’ analysis, which focuses on the person giving consent, the dispositive consideration in the ‘exploitation’ inquiry is the prior illegality’s effect on the police.” The dissent concedes as much elsewhere in its opinion when it correctly says that “exploitation concerns whether the police took advantage of the circumstances of their unlawful conduct.” 183 Or App at 66 (Deits, C.

1993This court held that the marijuana must be suppressed, because the police "were trading on evidence that they had only by virtue of the unlawful roadblock." 307 Or. at 626 , 772 P.2d 404 . *407 Although Williamson impliedly was based on a voluntariness analysis, [14] the result in that case may also be explained as based on an exploitation analysis.

1993This court held that the marijuana must be suppressed, because the police "were trading on evidence that they had only by virtue of the unlawful roadblock." 307 Or. at 626 , 772 P.2d 404 . *407 Although Williamson impliedly was based on a voluntariness analysis, [14] the result in that case may also be explained as based on an exploitation analysis.

1987State v. Foster, 288 Or 649, 655 , 607 P2d 173 (1980).

1987State v. Foster, 288 Or 649, 655 , 607 P2d 173 (1980).

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1979We assume that on remand a voluntariness hearing will be held in camera, as suggested in State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1974), and State v. Blackford, 16 Or App 217 , 517 P2d 1196 (1974), unless defendant waives such a hearing, State v. Rohde, 245 Or 593 , 421 P2d 690 (1966), cert denied, 387 US 924 , 87 S Ct 2043 , 18 L Ed 2d 981 (1967), at which time the facts may be fully developed.

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1974In Sims v. Georgia, 385 US 538, 543-44 , 87 S Ct 639 , 17 L Ed 2d 593 , on remand 223 Ga 465, 156 SE2d 65 , reversed 389 US 404 , 88 S Ct 523 , 19 L Ed 2d 634 (1967), the court stated: “* # * A constitutional rule was laid down in *220 * * * [Jackson v. Benno, supra] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given * * However, in a case in which trial counsel had explicitly consented to conducting the voluntariness hearing in the presence of the jury the Supreme Court held such a procedure permissible, stating: “*

1970In State v. Williams, 1 Or App 30 , 458 P2d 699 (1969), this court stated: “The effects of the drugs on the voluntariness of this waiver must be considered.

1970In State v. Williams, 1 Or App 30 , 458 P2d 699 (1969), this court stated: “The effects of the drugs on the voluntariness of this waiver must be considered.