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State v. Banks

Supreme Court of Oregon

February 7, 2019

STATE OF OREGON, Respondent on Review,
v.
RODNEY BANKS, SR., Petitioner on Review. 364 Or. 332 (2019)

          Argued and submitted May 4, 2018

          On review from the Court of Appeals. [*] CC 140130317, CA A158466

          Ben Eder, Thuemmel Uhle & Eder, Portland, argued the cause and fled the brief for petitioner on review.

          Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore. [**]

         [364 Or. 333] Case Summary: Defendant was arrested for DUII and, when asked, refused a police offcer's request that he "take a breath test" under the "implied consent law." Defendant's refusal was subject to use as evidence against him under ORS 813.310, and he fled a motion to suppress such use, arguing that his refusal was an invocation of his right not to consent to a warrantless search. The trial court denied defendant's motion, and defendant was convicted of DUII. The Court of Appeals affrmed. Held: Because the implied-consent statutes permit an offcer to ask for-and allows the state to punish a driver's refusal to provide-both physical cooperation with breath test under ORS 813.100 and constitutionally-sig-nifcant consent to search, the state has the burden to establish that an offcer's request that a driver submit to a breath test was only a request for the former and could not reasonably be understood as a request for the latter. Here, the state failed to meet its burden, and the existence of another warrant exception did not make defendant's refusal to provide consent admissible against him.

         [364 Or. 334] WALTERS, C. J.

         Defendant was arrested for driving under the influence of intoxicants (DUII) and, when asked, refused to take a breath test, which would have revealed the percentage of alcohol in his blood. For the reasons that follow, we conclude that Article I, section 9, of the Oregon Constitution prohibited the state from using defendant's refusal as evidence when it prosecuted him for that crime. We reverse the contrary decision of the Court of Appeals, State v. Banks, 286 Or.App. 718, 401 P.3d 1234 (2017), and the judgment of the circuit court.

         I. BACKGROUND

         The facts in this case are undisputed.[1] Defendant drove his vehicle into a fence one night in Portland. Paramedics and law enforcement responded to the scene, evaluated defendant, and determined that he was he was intoxicated. Defendant was arrested and transported to the police station, where officer Ladd was waiting. Ladd informed defendant that he had been in a crash and was at the police station because he "smelled of an alcoholic beverage pretty strongly." Ladd explained that he was "going to read [defendant] some information" and that he would "like [defendant] to open [his] mouth." When Ladd asked defendant, "Can I look in your mouth," defendant responded, "No." Ladd then explained that, "if you don't [open it], then I can't help you maybe take a breath test." After defendant responded that he would not open his mouth, Ladd read defendant the "rights and consequences" required by law. Ladd explained that defendant was "about to be asked to submit to a breath test * * * under the implied consent law," and he provided information on the consequences for refusing or failing the test, including that his refusal to submit to the breath test "may be offered against [him]." After reading [364 Or. 335] the form, Ladd asked defendant, "[W]ill you take a breath test?" Defendant responded that he would not. Ladd did not obtain defendant's blood alcohol content (BAC). Defendant was charged with DUII, reckless driving, and criminal mischief.

         Before trial, defendant moved to suppress evidence of his refusal to consent to the breath test. His position was that use of his refusal as substantive evidence of his guilt, as permitted under ORS 813.310, is unconstitutional. Defendant argued that use of his refusal would violate his right against self-incrimination under Article I, section 12, and his right against unreasonable searches and seizures under Article I, section 9. With respect to the latter, defendant argued that the use of his refusal as evidence as of his guilt placed too great a burden on his exercise of his Article I, section 9, right. The trial court denied the motion, the state presented evidence of defendant's refusal to support the inference that defendant knew he was intoxicated, and defendant was convicted of DUII.

         Defendant appealed his judgment of conviction, and the Court of Appeals affirmed. Banks, 286 Or.App. 719. On the Article I, section 9, issue, the only issue that we address, [2]the Court of Appeals explained that Ladd had a lawful right to conduct a warrantless seizure and search[3] based on a warrant exception-the existence of probable cause and exigent circumstances. Id. at 727. As a result, the court reasoned, defendant had no right to refuse to consent to that search, and his right against unreasonable searches and seizures was not violated by the use of his refusal as evidence at trial. Id.

         [364 Or. 336] Defendant sought review in this court, which we allowed. In this court, defendant does not argue that Ladd did not have probable cause or that exigent circumstances did not exist to permit a warrantless search of his breath. Instead, he argues, as he did in the proceedings below, that his refusal to take a breath test was an invocation of his right under Article I, section 9, of the Oregon Constitution to refuse to give his consent to a warrantless search. That exercise of a constitutional right, he submits, cannot be used as substantive evidence of his guilt and may not be commented on at trial without violating that constitutional provision.

         The state does not take issue with that latter proposition. The state acknowledges that, "as a general rule, a person's choice to refuse to consent to a warrantless search and seizure is not admissible as substantive evidence against him." See, e.g., State v. Smallwood, 277 Or 503, 505-06, 561 P.2d 600 (1977) (noting that it is "usually reversible error to admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury"); State v. Moller, 217 Or.App. 49, 51, 174 P.3d 1063 (2007) (error to admit evidence of the defendant's refusal to consent to a search of his car); United States v. Moreno, 233 F.3d 937, 941 (7th Cir 2000) (noting cases indicating that government cannot use refusal to consent to a search of home as evidence that person knew search would produce incriminating evidence); United States v. Thame, 846 F.2d 200, 207 (3rd Cir), cert den, 488 U.S. 928 (1988) (error for prosecutor to argue that defendant's refusal to provide consent to search constituted evidence of his guilt); State v. Larson, 788 N.W.2d 25, 32-33 (Minn 2010) (error to allow the introduction of defendant's refusal to consent to DNA testing as evidence of guilt); State v. Jennings, 333 NC 579, 604-05, 430 S.E.2d 188, 201 (1993) (error to allow officers to testify that defendant refused to allow search of hotel room and car); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979) (error to admit evidence of the defendant's refusal to consent to search of car); Curry v. State, 217 Ga App 623, 625-26, 458 S.E.2d 385, 386-87 (1995) (evidence of defendant's refusal to consent to surgery erroneously admitted).

         [364 Or. 337] The state's response, instead, is that that general rule is not implicated here for three reasons. First, the state contends, under the implied-consent statutes, defendant agreed, by driving on a public highway, to submit to a breath test if arrested for DUII and, therefore, did not have a constitutional right at the time of arrest to refuse to provide the consent that Ladd requested. Second, the state argues, defendant's refusal was not an invocation of a constitutional right. When Ladd asked defendant to take to a breath test, he was not asking defendant to waive his Article I, section 9, right; rather, he was seeking defendant's physical cooperation and submission to a breath test that Ladd had lawful authority to conduct. Third, the state asserts, even if defendant's refusal was an invocation of a constitutional right, it can be used against him because Ladd had another lawful basis for obtaining a breath sample from defendant without a warrant and without his consent-probable cause and exigent circumstances. We address each of those arguments in succession.

         II. ANALYSIS

         A. Defendant had a legal right to refuse to provide consent at the time of arrest.

         Article I, section 9, of the Oregon Constitution prohibits unreasonable searches and seizures of "persons" and their "houses, papers, and effects." A search of one's breath is protected under that provision. State v. Newton, 291 Or. 788, 800, 636 P.2d 393 (1981), overruled on other grounds by State v. Spencer, 305 Or. 59, 750, P.2d 147 (1988). Generally, Article I, section 9, requires that law enforcement obtain a warrant before performing a search. See Art I, § 9 ("[N]o warrant shall issue but upon probable cause."); State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988) (noting that law enforcement must have a warrant to search unless warrant exception applies). However, in interpreting that constitutional provision, this court has recognized various exceptions to the warrant requirement. See, e.g., State v. Davis, 295 Or. 227, 237-38, 666 P.2d 802 (1983) (noting some exceptions). One such exception is voluntary consent to search. State v. Paulson, 313 Or. 346, 351-52, 833 P.2d 1278 (1992). That exception is established when the state proves [364 Or. 338] that "someone having the authority to do so voluntarily gave the police consent to search the defendant's person or property," thereby waiving the right to insist that the government obtain a warrant. State v. Weaver, 319 Or. 212, 219, 874 P.2d 1322 (1994).

         The state contends that, under ORS 813.100, when an individual drives on a public road, the individual provides that voluntary consent and irrevocably waives the right to insist that the state obtain a warrant to search his or her breath. The state relies on ORS 813.100(1), which provides that,

"[a]ny person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath * * * for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants."

         The problem with the state's argument, however, is that the implied-consent statutes also include a provision that permits a person who drives on public roads to later refuse to take a breath test if and when the person is arrested for DUII. As this court recently explained in State v. Swan, 363 Or. 121, 420 P.3d 9 (2018), decided after the state filed its brief in this case, "ORS 813.100(2) expressly recognizes that a person arrested for DUII may decide, at the point of arrest, to refuse to submit to a breath test and that the person's refusal limits the state's ability to determine his or her BAC under the implied-consent statutes." Id. at 139. Specifically, ORS 813.100(2) provides that, if a person arrested for DUII refuses to submit to a breath test, "'[n]o chemical test of the person's breath * * * shall be given' under the implied-consent statutes, although the state can always apply for a warrant to determine a suspect's BAC." Id. Relying on that statutory provision, we rejected the state's argument that an individual who drives on public roads has no legal right to refuse a breath test. Id. at 138-39. We concluded that, at the time of arrest, "a DUII suspect does have a statutory right to decide whether to submit or refuse to submit to a breath test." Id. at 145.

         [364 Or. 339] That interpretation of the implied-consent statutes answers the state's first argument here that, under the implied-consent statutes, defendant did not have a right to refuse Ladd's request that he take a breath test. Because the implied-consent statutes preserve a driver's right to decide, at the point of arrest, whether to consent to a search of his or her breath or blood, it is that point in time that is relevant. Law enforcement officers may conduct a search of a driver's breath at that time, but they must have a constitutional basis to do so. The fact that the driver drove a vehicle on public roads prior to the arrest does not supply such a basis because Oregon law does not make the driver's implied consent irrevocable; rather, it gives the driver the opportunity to make a different choice at the time of arrest.[4]At the time of arrest, the constitutional bases for an officer's search may include the driver's voluntary consent given at that time. See ORS 813.100(5) ("Nothing in this section precludes a police officer from obtaining a chemical test of the person's breath or blood through any lawful means * * * including, but not limited to, obtaining a search warrant."); State v. Moore, 354 Or. 493, 495, 318 P.3d 1133 (2013), adh'd to as modified on recons, 354 Or. 835, 322 P.3d 486 (2014) (upholding search of driver's breath based on express voluntary consent at time of arrest). As indicated in ORS 813.140(1), if the basis for the search is the consent of the driver, that consent must be the driver's express consent at the time of arrest. Specifically, ORS 813.140(1) provides that a police officer may obtain a chemical test of a driver's breath "[i]f, when requested by a police officer, the [driver] expressly consents to such a test." We reject the state's argument that, by driving on a public highway, defendant irrevocably gave his consent to a later search of his breath and had no constitutional right to refuse a request to search at the time of arrest.

         [364 Or. 340] B. The state did not meet its burden to prove that defendant's refusal to consent to a breath test was admissible.

         The state's second argument is that, when Ladd asked defendant to take a breath test, Ladd was not asking defendant to provide a constitutional basis for that search; rather, Ladd had a constitutional basis for the search provided by another warrant exception-probable cause and exigent circumstances-and was seeking only defendant's agreement to submit to the requested test. The state argues that defendant's refusal to take the breath test was a refusal to perform a physical act and not an invocation of his constitutional right to insist on a warrant.

         The state is correct that, when an officer has probable cause to believe that a driver has been driving under the influence of alcohol, and exigent circumstances exist, the officer may conduct a warrantless search to determine a driver's BAC. See Moore, 354 Or at 497 n 5 (noting that exigent circumstances may permit warrantless search due to the "evanescent nature" of BAC); Missouri v. McNeely, 569 U.S. 141, 165, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (under Fourth Amendment, whether exigent circumstances exist in DUII context is determined on case-by-case basis).[5] The state also is correct that the implied-consent statutes are premised, at least in part, on the assumption that a police officer who asks a driver to take a breath test will have a constitutional basis for obtaining the driver's breath-the driver's consent implied by statute when the driver operates a motor vehicle on public highways-and will not need the driver's consent to search. See ORS 813.100(1)-(2) (providing that driver is "deemed to have given consent" but precluding test if the driver refuses to "submit" to breath test).[6] This court [364 Or. 341] has explained that the implied-consent statutes are meant "'to overcome the possibility of physical resistance * * * without resort to physical compulsion' by imposing adverse legal consequences on a refusal to submit to the test." Spencer, 305 Or at 67 (quoting Newton, 291 Or at 793); see also State v. Cabanilla, 351 Or. 622, 632, 273 P.3d 125 (2012) (legislative purpose with advice and consequences was to "coerce a driver's submission to take the tests"); Spencer, 305 Or at 71 ("[T]he statute's references to a driver's 'refusal' do not evince a legislative concern that the driver make a voluntary and fully informed decision whether to submit to the test.").

         At the same time, though, the implied-consent statutes make it clear that an officer who stops a driver for DUII need not rely on a driver's implied consent to provide the constitutional basis for a search of the driver's breath. ORS 813.100(5) permits an officer to obtain chemical tests of a driver's blood or breath "through any lawful means * * * including, but not limited to, obtaining a search warrant." And, ORS 813.140(1)[7] specifically describes those lawful [364 Or. 342] means as including obtaining a driver's "express [] consent []" to take such a test.

         Other statutes also reflect a difference between a request for physical submission and a request for express consent to search. For instance, and specifically relevant here, ORS 813.310 provides that, "[i]f a person refuses to submit to a chemical test under ORS 813.100 or refuses to consent to chemical tests under ORS 813.140, evidence of the person's refusal is admissible in any civil or criminal action[.]" (Emphasis added.) Other statutes allow the imposition of other consequences only when a driver refuses to submit to a test under ORS 813.100. See ORS 813.100(3) (driver who refuses to submit under ORS 813.100 subject to license suspension); ORS 813.095 ($650 fine for refusing to submit under ORS 813.100).

         Thus, given the various provisions of the implied-consent statutes, an officer's question to a driver asking whether the driver will take a breath test may be either (1) a request under ORS 813.140 for express consent to search the driver's breath that, if given, will supply a constitutional basis for the test; or (2) a request under ORS 813.100 that the driver "submit" to a breath test that finds its constitutional justification elsewhere.[8] Stated another way, a driver's refusal to answer that question affirmatively may be either an invocation of a constitutional right or a refusal to cooperate without constitutional significance.

         As discussed above, the invocation of a constitutional right cannot be admitted at trial as evidence of a defendant's guilt. However, no similar bar applies when an officer seeks only a driver's physical cooperation in conducting a constitutionally-authorized search. Defendant does not take issue with that notion, nor does he argue that the consequence that ORS 813.310 imposes for failure to submit under ORS 813.100 is unlawful. Rather, he contends only that the consequence that ORS 813.310 imposes for failure [364 Or. 343] to give express consent under ORS 813.140 is unconstitutional. And, he argues, he understood Ladd's question as seeking that express consent to search.

         When the state seeks admission of a defendant's refusal to take a breath test, the state, as the proponent of the evidence, has the burden to establish its admissibility. See State v. Fish, 321 Or. 48, 59, 893 P.2d 1023 (1995) ("As proponent of the evidence of defendant's refusal [to take field sobriety tests], the state has the burden, after appropriate objection has been raised, of establishing the admissibility of the evidence."). The state must demonstrate that the officer's question could reasonably be understood only as a request to provide physical cooperation and not as a request for constitutionally-significant consent to search. If the state fails to establish that fact, then a driver's refusal cannot be admitted in evidence against the driver.

         In this case, the state did not meet its burden. Ladd's question-"[W]ill you take a breath test?"-was ambiguous. Ladd could have been asking defendant to physically submit to a test that was justified by a warrant exception, or Ladd could have been asking defendant for his consent to search, thereby establishing a warrant exception. Ladd told defendant that he would be asked to submit to a breath test "under the implied consent law," but he did not specify the aspect of the implied-consent law to which he was referring. As explained, ORS 813.100 and 813.140 provide that a driver's consent to take a breath test may serve two different functions, one of which has constitutional significance. Here, the state did not meet its burden to establish that Ladd's request was solely a request for physical cooperation and could not reasonably be understood as a request for constitutionally significant consent to search. Consequently, the state did not establish that defendant's refusal to take the test was admissible as evidence of his guilt.

         C. The fact that the state had a constitutional basis to search does not make defendant's refusal to provide consent admissible.

         As indicated, the state's third and final argument is that, even if (1) an officer's request that a driver take a breath test is a request for constitutionally significant [364 Or. 344] consent to search, and (2) a defendant's refusal to provide consent to search is, as a general rule, not admissible against the defendant, we nevertheless should recognize an exception to that rule when an officer has a constitutional basis to search other than the defendant's consent. That is, the state contends, even if an officer is requesting constitutionally significant consent to search, the existence of an alternative basis for that search permits the admission of the driver's refusal. Applying that proposed exception here, the state argues that defendant's Article I, section 9, rights were not burdened by admitting evidence of his refusal to provide constitutional consent because Ladd had an unstated lawful basis for obtaining a breath sample from defendant without a warrant and without his consent-probable cause and exigent circumstances. The parties have not cited any Oregon Supreme Court case that has addressed that issue, [9]but other courts have done so, albeit outside the drunk driving context.

         In United States v. Rapanos, 115 F.3d 367, 369 (6th Cir 1997), the defendant was suspected of destroying wetlands on his property. Government officials with the Department of Natural Resources (DNR) met with the defendant at his property line, and, after a discussion, the defendant refused to allow them to visually search his property without a search warrant. Id. The defendant later attended a second meeting with the government officials, one that took place away from the defendant's property. Id. He again denied them access to his property without a warrant. Id. The government charged the defendant with discharging pollutants into wetlands, and, during trial, the defendant was questioned about his refusal to allow the government on his property. Id. at 370. The defendant did not object at the time, but, in a motion for a new trial after a guilty verdict was rendered, he argued that the prosecutor's questions impermissibly infringed on his Fourth Amendment rights. Id. at 371. The district court agreed and granted the defendant a new trial. Id.

         [364 Or. 345] On the government's appeal, the Sixth Circuit explained that, "[u]nless the defendant had a Fourth Amendment right to prevent the DNR representatives from coming onto [his property] for an inspection," the district court erred in granting the defendant's motion for a new trial. Id. at 372. And, the court further explained, the defendant had no such right: The open fields doctrine permitted the DNR officials to conduct a visual inspection of the defendant's property, and, because such a search would therefore be reasonable, the defendant had no Fourth Amendment right to assert. Id. at 374.

         Here, the Court of Appeals relied on this court's decision in State v. Meharry, 342 Or. 173, 149 P.3d 1155 (2006), and one of its own opinions to reach a conclusion similar to that reached by the Sixth Circuit in Rapanos. Banks, 286 Or.App. at 725. In Meharry, we stated that, under Article I, section 9, "a search conducted without a warrant is deemed unreasonable" unless it falls within one of the exceptions to the warrant requirement. Meharry, 342 Or at 177. In this case, the Court of Appeals explained, probable cause and exigent circumstances justified a warrantless search of defendant. Banks, 286 Or.App. at 727. Therefore, the court reasoned, Ladd had requested only that defendant submit to a reasonable search, and, in that instance, the court held, there is no Article I, section 9, right to be burdened. Id. at 725-27 (citing State v. Gefre, 137 Or.App. 77, 83-84, 903 P.2d 386 (1995), rev den, 323 Or. 483 (1996)). The state does not cite the Court of Appeals' decision, but its argument is consistent with that court's reasoning. The state contends that, because Ladd had lawful authority to seize a sample of defendant's breath without a warrant, defendant's refusal to comply was not a valid exercise of his rights under Article I, section 9.

         The difficulty with the state's argument, however, is that, at the time a suspect is asked to consent to a search, the suspect may not know whether another warrant exception provides an independent basis for the search. After all, when the state relies on exigent circumstances to justify a warrantless search, a determination of whether that exception applies will not be made until long after the search has been executed and, in circumstances similar to these, not [364 Or. 346] until long after the individual has been asked to provide consent. See Davis, 295 Or at 237 (1983) (noting that warrantless searches are "per se unreasonable" and that the state has the burden to prove that an exception applies). Furthermore, a suspect who is asked for consent reasonably could assume that his or her consent would not be necessary if officers already had another legal basis for conducting the search.

         Some courts have recognized that an analysis of the admissibility of a suspect's refusal to consent must focus on the right asserted rather than on the ultimate legality of the warrantless search. For instance, in Elson v. State,659 P.2d 1195, 1198 (Alaska 1983), the Alaska Supreme Court considered whether the principle that makes a defendant's refusal to consent to a warrantless search inadmissible is applicable to a search that was lawfully executed pursuant to another warrant exception. The court explained that the principle precluding admission is based on the notion that the right to insist upon a warrant '"would be effectively destroyed if, when exercised, it could be used as evidence of guilt.'" Id. (quoting Padgett, 590 P.2d at 434). That principle, the court concluded, applies with "equal force to lawful searches": "[T]he crucial question is not whether a search is illegal, but rather whether the admission of a refusal to consent to a search, legal or illegal, will inhibit the exercise of fourth amendment rights." Id.; see also Commonwealth v. Welch, 401 Pa Super 393, 398, 585 ...


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