State v. Bradbury

723 P.2d 1051, 80 Or. App. 613, 1986 Ore. App. LEXIS 3244

• Court: Court of Appeals of Oregon
• Decided: August 13, 1986
• Docket: 37744, 37745; CA A35697, A35698
• Status: Published

Opinions

RICHARDSON, P. J.

In this consolidated appeal, defendant appeals two convictions for burglary in the first degree. ORS 164.225. He assigns error to the trial court’s refusal to suppress his confessions and evidence that the police seized without a search warrant from his sister’s apartment. We affirm.

Defendant was under arrest and in custody at the police station when, after appropriate Miranda warnings, he stated that he wanted to talk to an attorney. Officer Sawyer asked him if he could search the apartment where defendant lived with his sister. Defendant consented, and the police seized items from the apartment that they believed had been stolen in two burglaries. Defendant argues that the use at trial of that evidence violated his right against compelled self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution and the Fifth Amendment. More specifically, he argues that, under Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981), and State v. Kell, 77 Or App 199, 712 P2d 827 (1986), the officer was foreclosed from asking him for consent to search after he had invoked his right to counsel. We decided the same issue adversely to defendant’s position in State v. Baumeister, 80 Or App 626, 723 P2d 1049 (1986). Defendant’s assertion that his consent was not voluntary is also without merit. His consent to the search was valid, and the trial court did not err in admitting the evidence found during the search.

After the officers had seized the property, they brought it to the police station so that the victims of the burglaries could identify property stolen from them. They placed the items on a table just outside the room in which defendant was being held. At that point, defendant pounded on the door of the room and, when Sawyer opened it, defendant asked him what the charges were against him. Sawyer pointed to the goods on the table and said that he would be charged with burglary in connection with those items. Defendant replied, “That is bullshit. That’s my stuff from Eugene.” Sawyer then returned him to the room and later placed him in a holding cell. Approximately 45 minutes after he had been shown the purportedly stolen goods, defendant called for Sawyer and told him that he wanted to talk. He then confessed to his involvement in the two burglaries. He gave a second, more detailed statement several hours later.

Defendant argues that Sawyer’s confronting him with the stolen goods constituted improper interrogation under Edwards v. Arizona, supra, and State v. Kell, supra, because he had invoked, and not waived, his right to counsel. He argues that his immediate reply and his subsequent confessions were tainted by that illegality and must therefore be suppressed.

Interrogation, for the purposes of Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), and its progeny means “express questioning or its functional equivalent.” Rhode Island v. Innis, 446 US 291, 300-301, 100 S Ct 1682, 64 L Ed 2d 297 (1980).¹

“* * * That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” 446 US at 301-302. (Footnotes omitted; emphasis in original.)

In appropriate circumstances, confronting a suspect with stolen goods could be deemed to constitute interrogation as defined in Rhode Island v. Innis. See State v. Guayante, 63 Or App 212, 663 P2d 784, rev den 295 Or 541 (1983); see also People v. Ferro, 63 NY2d 316, 482 NYS2d 237, 472 NE2d 13 (1984). However, those circumstances do not exist here. Sawyer was merely responding to defendant’s question when he pointed to the stolen goods. From the perception of defendant, Sawyer’s conduct could not reasonably have been viewed as seeking a response. The use of the challenged statements did not violate defendant’s right against compelled self-incrimination under either the state or federal constitution.

Defendant raises some arguments based on what he alleged was “excessive detention” by the police. He did not raise that issue in the trial court, and we will not consider it when raised for the first time on appeal. His argument that his confessions were not voluntary are without merit.

Affirmed.

1 This definition of interrogation appears appropriate to us for the purpose of state constitutional analysis. See State v. Smith, 70 Or App 675, 691 P2d 484 (1984), rev allowed 298 Or 704 (1985).