and submitted September 19, 2016
County Circuit Court 14CR17532; Kelly Skye, Judge.
P. Seltzer, Deputy Public Defender, argued the cause for
appellant. With her on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Christopher A. Perdue, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Michael S. Shin, Assistant Attorney General.
Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman,
was convicted of private indecency, ORS 163.467, for exposing
himself to a woman while installing internet service in her
home. On appeal, he assigns error to the trial court's
denial of his motion to suppress evidence of statements that
he made during an interview with police officers, contending
that he was under compelling circumstances at the time and
had not been given Miranda warnings. Held: Considering the
totality of the circumstances, the state failed to carry its
burden that defendant was not in compelling circumstances
when defendant admitted to the behavior that formed the basis
for the charge. Thus, the trial court erred in failing to
suppress those unwarned statements and the statements that
followed. Moreover, the error was not harmless.
Or. 174] EGAN, C. J.
was convicted of private indecency, ORS 163.467,
following a bench trial. He appeals the judgment of
conviction, assigning error to the trial court's denial
of his motion to suppress evidence of statements that he made
during an interview with police officers. He contends that
the statements were obtained in violation of his rights under
Article I, section 12, of the Oregon Constitution because he
was under compelling circumstances at the time and was not
provided with Miranda warnings. Given the totality
of the circumstances, we agree that the circumstances of
defendant's encounter with police became compelling
before defendant made statements admitting to the charged
conduct; accordingly, the trial court erred in admitting
those unwarned statements. Because that error was not
harmless, we reverse and remand.
state the historical facts consistently with the trial
court's findings that are supported by sufficient
evidence in the record; we presume that the trial court
resolved disputed facts consistently with its express factual
findings and its ruling denying defendant's motion to
suppress. State v. Shaff, 343 Or. 639, 641, 648, 175
P.3d 454 (2007).
called 9-1-1 to report that defendant, a subcontractor for
Comcast, had pulled his pants down and exposed himself while
installing her internet service. The next evening, Portland
Police Officer Stowe called defendant and asked him if he
would be willing to come voluntarily to the police station to
give Stowe "his side of the story." Defendant
agreed to come to the station and speak to the officer and
arrived about an hour later.
Or. 175] Stowe and another officer, Steigleder, who had
experience investigating sex crimes, met defendant at the
front door and showed him into a small meeting room right off
the main lobby and about 15 feet from the front door of the
station. The room was ordinarily used for meeting with
community members, taking crime reports, and interviewing
crime victims. The officers were in uniform and armed.
interview room had two doors and windows facing the street.
It was unlocked, and no security code was needed to enter or
leave. It contained a small round table that the officers and
defendant sat around; defendant sat in the chair closest to
the door to the lobby, Steigleder sat to his right, and Stowe
sat to the right of Steigleder. Neither officer blocked
defendant's access to the exit door. The room did not
have any cameras or police equipment in it, and the
temperature was comfortable.
interview began with Stowe asking defendant to tell his side
of the story. Defendant was not advised of his
Miranda rights then or at any point during the
interview. The officers never raised their voices, and there
was no show of physical force or indication that the officers
might engage in physical force.
first said that he was installing some cable devices in the
complainant's home and, while he was in a crouched
position, his belt broke and his pants fell down. The
complainant came into the room while his pants were still
down. He said that his penis was not exposed. He showed the
officers the belt, which he had brought with him. It looked
like it had been cut rather than torn from use. Defendant stood
up at some point to show the officers how his pants were
fitting; the officers did not tell him to sit down.
Otherwise, the officers and defendant remained seated during
Or. 176] Stowe pointed out to defendant that his version of
the incident was inconsistent with the complainant's
version. The second or third time that defendant told his
story, he said that his penis may have been exposed a little
through a hole in his underwear. When Stowe told defendant
that that was also different from the complainant's
account, defendant said that the complainant was lying. Each
time that defendant told the story, he added details that he
had not included before. Stowe was "unconvinced" by
defendant's account of events.
who did the majority of the questioning, told defendant that
she did not think his story made sense and communicated that
she did not believe he was telling the truth. At the
suppression hearing, she testified:
"I would point out the inconsistency [with the
complainant's statement] and give him another chance to
tell me the story, and he told the story and he changed it a
little, and then I'd point out the next inconsistency and
he would change it again. And we just kind of-it was kind of
I let him tell the story and then I would point out why it
didn't make sense and then said, you know, I don't
think that's quite the way ...