State v. Boyd

302 September 22, 2016 No. 59

IN THE SUPREME COURT OF THE
STATE OF OREGON

STATE OF OREGON,
Respondent on Review,
v.
ROBERT DARNELL BOYD,
Petitioner on Review.
(CC 201026332; CA A151157; SC S063260)

On review from the Court of Appeals.*
Argued and submitted January 12, 2016.
Laura A. Frikert, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With
her on the brief was Ernest G. Lannet, Chief Defender, Office
of Public Defense Services.
Rebecca M. Auten, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Paul L. Smith, Deputy Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices, and Garrett, Justice
pro tempore.**
LANDAU, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

______________
**  Appeal from Lane County Circuit Court, Lauren S. Holland, Judge. 270
Or App 41, 346 P3d 626 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
Cite as 360 Or 302 (2016) 303

Case Summary: Upon defendant’s arrest on suspicion of having beaten his
girlfriend to death, a police detective attempted to question him. Defendant
claimed to have no memory of the events leading up to his arrest and seemed not
to believe the detective when he told him that his girlfriend was dead and that
he was under arrest for her murder. When defendant told the detective he did not
wish to be questioned without a lawyer present, the detective ended the inter-
view and had defendant placed in a holding cell. Hours later, defendant asked
a different police officer why he was in jail and stated that he needed to call his
“baby girl.” The police officer’s responses—asking defendant whether his “baby
girl” was his girlfriend and if he “didn’t remember” being told why he was in jail,
and then telling defendant that he had been arrested for killing his girlfriend—
caused defendant to become agitated and to ask to speak to the police detective
who had attempted to interrogate him the night before. The detective was called
in and interviewed defendant about the circumstances surrounding the girl-
friend’s death. Prior to his trial for murdering the girlfriend, defendant moved to
suppress his statements during that interview on the ground that the police offi-
cer’s responses to his question about why he was there amounted to reinitiation of
interrogation which, because defendant had previously invoked his right to coun-
sel, was prohibited under the Fifth Amendment to the United States Constitution
and Article I, section 12, of the Oregon Constitution. The trial court denied the
motion to suppress and, on defendant’s appeal from his subsequent conviction,
the Court of Appeals affirmed. Held: Because the police officer’s questions and
comments to defendant were reasonably likely to elicit some type of incriminat-
ing response from him, they constituted custodial interrogation, which, given
that defendant had invoked his right to counsel, was prohibited under Article I,
section 12, of the Oregon Constitution.
The judgment of the circuit court and the decision of the Court of Appeals
are reversed. The case is remanded to the circuit court for further proceedings.
304 State v. Boyd

LANDAU, J.
The issue in this case is whether police unlawfully
interrogated a criminal defendant after he invoked his rights
to counsel and against compelled self-incrimination, guar-
anteed by Article I, section 12, of the Oregon Constitution
and the Fifth Amendment to the United States Constitution.
The state argues that defendant had asked a “confusing”
question and that police responded by seeking “clarifica-
tion,” which did not amount to unconstitutional interroga-
tion. Defendant argues that he had merely asked why he had
been taken into custody and whether he could make a phone
call, that there was nothing particularly confusing about
the requests, and that police responded with questions that
were reasonably likely to—and in fact did—elicit incrimi-
nating evidence. As a result, he contends, that incriminat-
ing evidence should have been suppressed. The trial court
agreed with the state and denied defendant’s motion to sup-
press. The Court of Appeals affirmed. State v. Boyd, 270 Or
App 41, 346 P3d 626 (2015). For the reasons that follow, we
conclude that defendant is correct that the police unconsti-
tutionally interrogated him, in violation of Article I, section
12.
The relevant facts are not in dispute. Defendant’s
girlfriend, Archibald, was found dead on the street, the vic-
tim of a severe beating. Witnesses saw her on the ground
and saw defendant running away from the scene. A few min-
utes later, police arrested defendant, who had Archibald’s
blood on his hands, shoes, and pants. The arresting officers
advised defendant of his constitutional rights and ques-
tioned him. Defendant told the police that he was not sure
what happened. He saw that his hand was bleeding and
“figured” that he had been in a fight or had punched a car
window. He said that he recalled that Archibald had become
angry with him because she thought he had pushed her and
that she had hit him several times. But he denied hitting
her, insisting that he would never hit a woman. He repeat-
edly asked about Archibald’s welfare.
The officers took defendant to the police station.
There, Detective Myers questioned him while Sergeant
Lewis observed. Defendant again said that he could not
Cite as 360 Or 302 (2016) 305

remember what had happened and that, given the injury
to his hand, he must have “either punched somebody’s car
or punched somebody.” He said that he knew that he “was
pissed off, because I was arguing with my girl.” He then
stated that “I don’t know why I’m here, so—please don’t talk
to me anymore on that aspect until you bring me a lawyer.”
Myers told defendant to change into jail clothes.
As defendant did that, he asked Myers why he had been
arrested. Myers told him that Archibald was dead and that
he was being arrested for her murder. Defendant became
agitated, expressing disbelief:
“A:  Whoa, whoa, whoa, what the fuck you mean, my
girlfriend is dead, man?
“Q:  She’s dead.
“A:  No, no, no, no—Ally’s at home.
“Q:  Change your clothes. Let’s go.
“A:  Ally’s at home.
“Q:  Have a seat and change your clothes. That’s all
you’ve got to do. Relax and change your clothes.
“A:  What you mean, my girlfriend’s dead, man? That’s
not, no, no, no, we just had an argument. I left her—my
girl ain’t dead. My girl is drunk at home with the baby. I
don’t—fuck what y’all is saying, and why the fuck are all of
you mother-fuckers gathering up on me?
“Q:  We are not gathering up on you. We’d just like you
to change your clothes, sit down and we’ll get through the
process.
“A:  All right, but my girl ain’t dead. My baby is at
home, peaceful. No, I refuse to even entertain that thought.
Fuck you, you can kiss my ass. My baby’s at home with the
baby. She’s at home where she ought to. No, hell no, fuck
you, you can kiss my ass. No, my baby is fine. I don’t give a
fuck what y’all—my baby is at home with Elija. I wouldn’t
give a fuck what y’all talking about. Fuck that shit.
“Q:  You want to slide your pants over here?
“A:  Man, listen. Fuck that, my baby ain’t dead. My
baby is at home with the baby. [inaudible] No, no, no—
306 State v. Boyd

“Q:  You just sit here until officers come to take pos-
session of your things. Can someone transport him? Put
your hands behind your back. I’ll try hard not to [inaudi-
ble] them too hard. I know you got a bum finger.
“A:  I’m not about to fight you because my baby ain’t
dead [inaudible] I don’t know what the fuck happened
tonight, but my baby ain’t dead.”
Lewis observed the foregoing interchange between defen-
dant and Myers.
About seven hours later, Lewis learned that defen-
dant had been transferred to a holding cell with a sink
and running water. Concerned that defendant could have
washed his hands and destroyed potential evidence, he
went to defendant’s cell. He checked defendant’s hands and,
apparently satisfied that defendant had not washed them,
turned to leave. Defendant spoke to Lewis, asking, “Is any-
body going to tell me why I’m here? I need to call my baby
girl because she’s going to wonder where I’m at.” As Lewis
later recalled in testimony at a suppression hearing, the fol-
lowing exchange then occurred:
“A:  I asked him if he didn’t remember Detective Myers
telling him why he was here, and he replied, ‘no, I don’t
remember nothing about that or talking to nobody.’
“Q:  Then what?
“A:  I asked him, when he was talking about his baby
girl, if he was referring to * * * Archibald and he said that
he was, and then I just told him that I was present when
Detective Myers told him that she was dead and he was
under arrest for killing her, and he got real agitated and
started breathing heavy and clenching his fists and told
me, ‘no, no, she ain’t dead, you’re lying’ and then he tells
me ‘I want to talk to the detective that you said I talked
to.’ ”
Lewis went to get Myers, who arrived at defendant’s
holding cell within minutes. Once there, Myers reminded
defendant that he had earlier asked to speak with a law-
yer and asked him if he still wanted one. Defendant said
that he did not want a lawyer but wanted to talk to Myers
about what had happened. Myers advised defendant of his
Miranda rights and again asked if defendant wished to
Cite as 360 Or 302 (2016) 307

speak to him without a lawyer present. Defendant said, yes.
In the ensuing interview, defendant described an altercation
with Archibald during which she had hit him repeatedly,
making him angry so that “he felt like bashing her fucking
head.” He recalled that he had pinned Archibald against a
van and then hit her once, causing her to fall and hit her
head on the ground. Defendant asserted that, after hitting
Archibald, he had “blacked out and just took off walking.”
When Myers told defendant that Archibald’s injuries were
inconsistent with a single punch, defendant requested an
attorney, and the interview ended.
The state charged defendant with Archibald’s mur-
der. Before trial, defendant moved to suppress his state-
ments to Myers, arguing that they were obtained in viola-
tion of his right against compelled self-incrimination under
Article I, section 12, of the Oregon Constitution and the
Fifth Amendment to the United States Constitution. He
argued that the police had “either circumvented or coerced”
him into making those statements in spite of his explicit
invocation of his right to speak to an attorney. The trial
court denied the motion, holding that defendant had know-
ingly and voluntarily waived his right to counsel. The trial
court explained that the interview with Myers had occurred
“only upon defendant’s request to have further contact with
* * * Myers” and only after Myers readministered Miranda
warnings.
During the trial to the court, the state introduced
evidence of defendant’s statements to Myers, in particular,
defendant’s statement about being angry with Archibald
and that he “felt like bashing her fucking head.” Defendant
did not dispute that he had killed Archibald. His defense
was that he lacked the requisite culpable mental state.
In support of that defense, he took the stand and testified
that he had never intended to hurt Archibald, that he had
been unaware of punching her at the time, and that he did
not remember doing so after the fact. In rebuttal, the state
presented the testimony of a psychological expert who had
relied in part on defendant’s statements to Myers to reach
his conclusion that defendant was malingering. The trial
court convicted defendant of murder, ORS 163.115, and sen-
tenced him to imprisonment for life.
308 State v. Boyd

On appeal, defendant argued that the trial court
erred in denying his motion to suppress his statements to
Myers after he invoked his right to counsel, and that the
error was prejudicial. He also asserted an unpreserved
argument that the trial court should have suppressed the
statements that he made to the police before he invoked his
right to counsel, on the ground that the advice of his rights
when he initially was contacted by the police was defective.
The Court of Appeals affirmed. The court concluded
that, because Lewis’s responses to defendant’s questions
were not of a sort that the officer should have known would
be likely to produce an incriminating statement from defen-
dant, it was not a reinitiation of interrogation. Boyd, 270 Or
App at 47. The court explained that defendant himself had
reinitiated interrogation, by “request[ing] to speak to Myers,
indicating his desire for a generalized discussion about the
investigation.” Id. at 48. The court concluded that, in light
of Myers’s readministration of Miranda rights, the passage
of time between defendant’s invocation and his profession of
a wish to speak to Myers without a lawyer, and the absence
of any evidence of mental impairment, the trial court had
not erred in finding that defendant had knowingly and vol-
untarily waived his right to be questioned only in the pres-
ence of counsel. Id. Finally, the court rejected defendant’s
unpreserved contention that the initial advice of rights was
inadequate without discussion. Id. at 43.
On review before this court, defendant argues that
he did not reinitiate interrogation; rather, he asked rou-
tine questions associated with being taken into custody. In
defendant’s view, it was the police that reinitiated interro-
gation, when Lewis questioned him about his lack of mem-
ory about the earlier conversation concerning the assault
on Archibald. Defendant asserts that, once he asserted his
right to refrain from speaking with police without counsel
present, police were prohibited by Article I, section 12, and
the Fifth Amendment from asking any direct questions in
the absence of a waiver of that right. At the least, defendant
contends, police were forbidden to ask questions that were
likely to elicit incriminating information. In this case, he
argues, the questions that Lewis posed to him were likely
Cite as 360 Or 302 (2016) 309

to do just that, given the fact that defendant already had
denied remembering the assault. Defendant also reprises his
unpreserved contention that, at all events, the initial advice
of rights that he received was constitutionally inadequate.
The state argues that defendant is wrong in assert-
ing that Article I, section 12, forecloses questioning of any
sort once a defendant has invoked a right to counsel. In the
state’s view, all that is prohibited is asking questions that
are likely to elicit incriminating information from the defen-
dant. In this case, the state contends, defendant’s questions
about why he was in custody were “confusing,” given that
defendant had been told several hours earlier why he had
been arrested. In light of the confusing nature of defen-
dant’s questions, the state argues, it was lawful for Lewis to
ask “clarifying” questions that were not reasonably likely to
elicit an incriminating response. In any event, the state con-
tends, the incriminating information at issue—defendant’s
statement that he intended to beat Archibald—derived from
Myers’s questioning, not Lewis’s. And that occurred only
after defendant expressly waived his constitutional rights
and demanded to speak to the officer.
Defendant replies that, although he did demand to
speak with Myers, that demand was a direct result of Lewis’s
interrogation, before any waiver of constitutional rights.
At the outset, we reject without discussion defen-
dant’s contention that the initial advice of rights was con-
stitutionally inadequate. The parties’ remaining conten-
tions are rooted both in Article I, section 12, of the Oregon
Constitution and in the Fifth Amendment. We begin with
defendant’s arguments under Article I, section 12. State v.
Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court gen-
erally considers state law questions before reaching federal
constitutional claims). But, because this court’s case law
under that section of the state constitution has relied heavily
on federal Fifth Amendment doctrine, we precede our state
constitutional analysis with a brief summary of federal law
to provide some context.
The Fifth Amendment to the United States
Constitution provides that, “[n]o person shall * 
* * be
310 State v. Boyd

compelled in any criminal case to be a witness against him-
self.” In Edwards v. Arizona, 451 US 477, 484-85, 101 S Ct
1880, 68 L Ed 2d 378 (1981), the United States Supreme
Court held that, once a suspect invokes his or her Fifth
Amendment rights, there can be no “further interrogation
by the authorities until counsel has been made available
* * * unless the accused * * * initiates further communica-
tion, exchanges, or conversations with the police.” Left unde-
fined in Edwards were what the Court meant by an accused
“initiat[ing]” further communication, as well as the nature
of the “interrogation” that must cease until the accused does
so.
The Court addressed the first issue in Oregon v.
Bradshaw, 462 US 1039, 103 S Ct 2830, 77 L Ed 2d 405
(1983). In that case, the defendant asked a police officer on
the way to jail, “Well, what is going to happen to me now?”
A plurality of the Court concluded that the defendant, in
posing that question, had “initiated” further communication
with the police for Fifth Amendment purposes. In reaching
that conclusion, the Court distinguished the defendant’s
questions from what it described as “routine inquiries”:
“There are some inquiries, such as a request for a drink of
water or a request to use a telephone, that are so routine
that they cannot be fairly said to represent a desire on the
part of an accused to open a more generalized discussion
relating directly or indirectly to the investigation. Such
inquiries or statements, by either an accused or a police
officer, relating to routine incidents of the custodial rela-
tionship, will not generally ‘initiate’ a conversation in the
sense in which that word was used in Edwards.”
Id. at 1045. The four justices who dissented did not take
issue with the plurality’s definition of what amounted to
“initiating” a conversation; rather they disputed the plural-
ity’s application of that test to the particular facts, conclud-
ing that the defendant’s question did not indicate a desire
for a generalized discussion about the investigation. Id. at
1055-56 (Marshall, J., dissenting).
The Court addressed the second issue in Rhode
Island v. Innis, 446 US 291, 100 S Ct 1682, 64 L Ed 2d 297
(1980). In that case, the defendant was arrested for murder
Cite as 360 Or 302 (2016) 311

and advised of his Miranda rights, after which he asked
to speak with a lawyer. On the way to the police station,
two police officers who accompanied the defendant did not
question him. They did talk among themselves, noting that
(among other things) a child from a school for handicapped
children near where the murder had occurred might find
the gun with which the murder victim had been shot and
accidentally shoot someone. Hearing the conversation, the
defendant told the police to return to the scene of his arrest,
so that he could show them where he had left the gun. Id. at
293-95. Following the defendant’s arrest for the murder, he
moved to suppress the gun and his statements to the police,
on the ground that the evidence had been obtained in viola-
tion of his Fifth Amendment rights. The trial court denied
the motion, but the Rhode Island Supreme Court reversed.
Id. at 295-97.
The United States Supreme Court vacated the
decision of the Rhode Island Supreme Court. A majority of
the Court concluded that, for Fifth Amendment purposes,
“interrogation” refers “not only to express questioning, but
also to any words or actions on the part of the police * * *
that [they] should know are reasonably likely to elicit an
incriminating response.” Id. at 301. That test, the majority
said, “focuses primarily upon the perceptions of the suspect,
rather than the intent of the police.” Id. Applying that test,
the majority concluded that the police conversation was not
of a sort that the officers should have known was likely to
elicit an incriminating response. Id. at 303. The majority
noted that there was no evidence that the officers knew that
defendant was “peculiarly susceptible to an appeal to his
conscience concerning the safety of handicapped children.”
Id. Three justices dissented, two of whom agreed with the
majority’s definition of what constituted “interrogation,” but
disputed its application of the test to the facts of that case.
Id. at 305-06 (Marshall, J., dissenting).
The Innis test was ambiguous, to say the least.
In particular, it was not clear whether “interrogation”
included any and all direct questioning on the part of
police or only questioning that police should have known
was likely to elicit an incriminating response. Portions of
312 State v. Boyd

the Court’s opinion in Innis appeared to support either
interpretation.1
In Pennsylvania v. Muniz, 496 US 582, 110 S Ct
2638, 110 L Ed 2d 528 (1990), the court returned to the
issue of what constitutes Fifth Amendment “interrogation.”
The Court was confronted with an argument that certain
questions—those that are routine in the booking process—
do not constitute interrogation because they are not intended
to elicit information for investigative purposes. A plurality
of the Court rejected that argument, but held that replies
to such questions are admissible under a “routine book-
ing exception” to the Miranda rule. Id. at 600-02. But the
same plurality suggested that certain other questions—
specifically, questions about whether a suspect in custody
understood the instructions he had been given about a
breathalyzer test and was willing to submit to the test—did
not constitute interrogation within the meaning of Miranda
at least in part because those questions were “not likely to
be perceived as calling for any incriminating response.” Id.
at 605. The Court thus appeared to adopt the view—without
expressly addressing the issue, to be sure—that “interroga-
tion” does not include all forms of direct questioning.
Not surprisingly, federal circuit courts have split
on the issue of what constitutes “interrogation.” A few
have held that, for Fifth Amendment purposes, “interro-
gation” includes any form of direct or express police ques-
tioning, regardless of content. See, e.g., Smiley v. Thurmer,
542 F3d 574, 582 (7th Cir 2008) (“Innis does nothing more
than define when police practices, other than express ques-
tioning, constitute interrogation.”) (Emphasis in original.);
United States v. Montgomery, 714 F2d 201, 202 (1st Cir
1
  The ambiguities of Innis go much further than that. It is not entirely clear,
for example, whether the Innis test imposes an objective or a subjective test, or
whether it focuses on perceptions of the suspect or the officer. Once again, the
opinion itself provides something for everyone, leading to splits among lower
courts in every imaginable direction. See generally Kyle C. Welch, Asking the
Scary Question: What Is the Correct Understanding of “Interrogation” Under
Rhode Island v. Innis?, 50 Cal W L Rev 233, 256 (2014) (describing “chaotic
outcomes in cases where interrogation was the principal issue”); Alexander S.
Helderman, Revisiting Rhode Island v. Innis: Offering a New Interpretation of the
Interrogation Test, 33 Creighton L Rev 729, 738 (2000) (“There is little consis-
tency among the federal circuit courts’ interpretation of the Innis test.”).
Cite as 360 Or 302 (2016) 313

1983) (“Since the questioning here was express, we have no
occasion to go farther. This was custodial interrogation.”).
Most hold that direct questioning, by itself, is not enough to
amount to “interrogation” for Fifth Amendment purposes.
See, e.g., United States v. Booth, 669 F2d 1231, 1237 (9th Cir
1981) (“We hold, therefore, that custodial questioning consti-
tutes interrogation whenever, under all the circumstances
involved in a given case, the questions are reasonably likely
to elicit an incriminating response from the subject.”).
Article I, section 12, of the Oregon Constitution
is phrased nearly identically to the Fifth Amendment in
providing that, “[n]o person shall * * * be compelled in any
criminal prosecution to testify against himself.” In conse-
quence, this court has found case law applying the Fifth
Amendment guarantee to be useful in construing the simi-
larly worded guarantee of Article I, section 12.
In State v. Kell, 303 Or 89, 95-100, 734 P2d 334
(1987), this court concluded that the rule in Edwards
that police must cease interrogation once a defendant has
invoked his Fifth Amendment rights is “equally applicable”
to Article I, section 12. See also State v. Isom, 306 Or 587,
593, 761 P2d 524 (1988) (“Upon request for counsel, ques-
tioning not only ‘should’ but must cease.”).
In State v. Meade, 327 Or 335, 963 P2d 656 (1998),
the court concluded that police could engage in further
interrogation if a defendant “initiated” further discussion
about the investigation into whether the defendant had com-
mitted a criminal offense. Id. at 340. The court concluded
that whether a defendant “initiated” such further discussion
depended on whether the defendant had shown that he or
she “was willing to enter into a generalized discussion of
the substance of the charges without the assistance of coun-
sel.” Id. That particular formulation of the test borrowed
directly from the United States Supreme Court’s decisions
in Bradshaw and Edwards, although the court did not men-
tion those cases by name.2 See also State v. McAnulty, 356
Or 432, 456, 338 P3d 653 (2014), cert den, __ US __, 136
2
  In fact, the majority’s borrowing from Fifth Amendment doctrine was one
of the issues on which it and the dissent parted company. Id. at 351-52 (Durham,
J., dissenting).
314 State v. Boyd

S Ct 34, 193 L Ed 2d 48 (2015) (Defendant “re-initiated”
further conversation with authorities because her comments
“expressed a willingness to continue a discussion about the
investigation.”).
This court likewise borrowed from federal case law
in determining what constitutes “interrogation” for Article I,
section 12, purposes. In State v. Scott, 343 Or 195, 166 P3d
528 (2007), the defendant was arrested on suspicion of mur-
der, advised of his Miranda rights, and transported to the
police station, where he was placed in an interview room.
When two officers entered the room, the defendant said,
“I would appreciate a lawyer present before I say anymore
to you guys.” As one of the officers turned on a recording
device, defendant said two more times that he wanted to see
a lawyer. The officer replied that he wanted to review the
defendant’s rights with him first and proceeded to reiter-
ate his Miranda rights. The officer then asked whether the
defendant had any questions about those rights, to which
the defendant replied that he did not and that, because of
what he had “seen on TV,” he thought he needed a lawyer.
The officer responded with a question: “You saw something
on TV?” The defendant explained that he had seen a report
that he had “killed somebody.” The officer then replied,
“Saying that you killed somebody, huh?,” after which he
waited eight to ten seconds before asking whether defendant
wanted a particular lawyer. The defendant said that he “just
want[ed] one here.” The officer asked whether there was a
particular lawyer that the defendant had worked with in the
past, at which point the defendant stated that he no longer
cared about a lawyer and that he was ready to speak with
the officers. Id. at 198.
The defendant then made incriminating statements
to the officers, which he later sought to suppress on the
ground that the police did not cease interrogating him after
he had invoked his right to counsel under Article I, section
12. The trial court agreed and suppressed the statements,
and this court affirmed. At the heart of the parties’ argu-
ments on appeal was the meaning of the term “interroga-
tion” for Article I, section 12, purposes. Both the defendant
and the state tailored those arguments to the United States
Cite as 360 Or 302 (2016) 315

Supreme Court’s decision in Innis. This court responded by
explicitly relying on that Fifth Amendment decision:
“This court has emphasized that the constitutional pro-
tections afforded to suspects and criminal defendants set
out in the Oregon Constitution require an analysis inde-
pendent of similar protections set out in the United States
Constitution. Here, however, the question does not concern
the construction of any term set out in Article I, section
12; instead, our task involves defining a familiar term—
‘interrogation’—that both this court and the United States
Supreme Court repeatedly have used to delineate situa-
tions in which Miranda-type warnings are required or
Miranda-type rights are implicated under either the state
or federal constitutions. Additionally, neither party con-
tends, in the context of each one’s arguments in this case,
that the concept of interrogation carries any meaning dif-
ferent from the one that the United States Supreme Court
articulated in Innis. In view of those considerations, we
shall apply the Court’s definition of the term interrogation,
for purposes of Miranda’s Fifth Amendment requirements,
to our analysis of defendant’s Article I, section 12, rights
at issue here.”
Id. at 203. This court noted that whether that questioning
amounted to “interrogation” for Article I, section 12, pur-
poses depended on whether that questioning was of a sort
that “the police should know is likely to elicit an incriminat-
ing response,” taking into account “both the substance of the
questions posed to [the] defendant and the manner in which
those questions were asked.” Id.
Turning to the particular police questions at issue,
the court noted that the officer’s questioning about what the
defendant had seen on television was aimed at the very rea-
son for the defendant’s arrest for murder and that “any fur-
ther discussion of that broadcast would serve only to prolong
a discussion that [the] defendant had tried to terminate
and, indeed would be reasonably likely to elicit some type of
incriminating response.” Id. at 203-04. The court observed
that the officer’s long pause after asking about the televi-
sion broadcast—“Saying that you killed somebody, huh?”—
provided the defendant “an invitation, and an opportunity,
to provide an incriminating response.” Id. at 204.
316 State v. Boyd

The court’s analysis in Scott appears to dispose
of defendant’s argument in this case that any direct ques-
tioning by police after an invocation of Article I, section
12, rights amounts to “interrogation,” as a matter of law.
The court concluded that the officer’s questioning in that
case amounted to “interrogation” for Article I, section 12,
purposes not merely because it was direct questioning, but
because of “the substance of the questions posed to [the]
defendant and the manner in which those questions were
asked.” Id. at 203. Moreover, the court read Innis to require
the application of an essentially objective test—namely,
whether the nature of the police questioning was such that it
was reasonably “likely to elicit an incriminating response.”
Id.
Defendant insists that, although the court in Scott
did apply the “likely to elicit incriminating evidence” test
to direct questioning, the case “does not control the resolu-
tion of this case” because no one in Scott made the precise
argument that he is making and because failing to con-
clude that direct questioning of any sort is “interrogation”
is inconsistent with Innis. We are not persuaded by either
argument.
It is true that the court qualified its decision in Scott
with the observation that no one in that case had suggested
that a different test should be applied. In subsequent cases,
though, this court has cited Scott for the same test, without
any such qualifications. See, e.g., State v. Vondehn, 348 Or
462, 466 n 3, 236 P3d 691 (2010) (noting that whether police
questions constitute “interrogation” for Article I, section 12,
purposes depends on whether they are of a kind that “police
should know [is] reasonably likely to elicit an incriminating
response”).
To the extent that any ambiguity remains about the
test for determining whether “interrogation” has occurred
we conclude in this case that Scott correctly stated the test
for the following reasons. First, whether Scott was cor-
rectly decided is not necessarily determined by reference to
whether it properly applied Innis. As this court often has
observed, while it may from time to time borrow a doctrine
or concept from federal court decisions when it interprets or
Cite as 360 Or 302 (2016) 317

applies the state constitution, the court is doing so “because
it finds the views there expressed persuasive, not because it
considers itself bound to do so by its understanding of fed-
eral doctrines.” Kennedy, 295 Or at 267.
Second, in any event, Scott is not inconsistent
with Innis or later United States Supreme Court case law.
We noted earlier that Innis itself is not a model of doctri-
nal clarity; the Court left notoriously unclear whether its
“likely to elicit an incriminating response” test applied
to direct questioning. The Court’s later opinion in Muniz,
however, strongly suggests that the Innis test does apply to
direct questioning. The Court held that some forms of direct
questioning—for example, questions about whether a per-
son being asked to undergo sobriety testing understands the
instructions and is willing to submit to the testing—do not
constitute “interrogation” for Fifth Amendment purposes at
least in part because such questions are not likely to elicit
incriminating responses. 496 US at 605.
Third and finally, aside from the fact that Scott
appears consistent with post-Innis federal case law, its
holding makes sense on its own terms. The notion that
all forms of direct questioning constitute “interrogation”
for constitutional purposes is unrealistic. Some types of
questions—“Would you like a glass of water?”—are often
innocuous and do not implicate the constitutional con-
cerns that form the underpinnings of Article I, section 12,
and Fifth Amendment rights. See generally LaFave et al,
2 Criminal Procedure 854-55 (4th ed 2015) (cases holding
that some “innocuous” questions do not implicate Miranda
are “certainly correct”). The heart of both state and federal
constitutional guarantees, after all, is protecting against
compelled incrimination. See generally State v. Davis, 350
Or 440, 455-57, 256 P3d 1075 (2011) (reviewing history and
prior case law regarding constitutional guarantees of “com-
pelled self-incrimination”). In that regard, we find persua-
sive the discussion of the issue by the Court of Appeals for
the Ninth Circuit in Booth. Holding that “interrogation” con-
sists of not all police questioning, but only questioning that
is reasonably likely to produce an incriminating response,
the court explained:
318 State v. Boyd

“[W]e believe that the reasoning supporting the Court’s
decision [in Innis], indeed, the very purpose behind Miranda
itself, compels the conclusion that not every question posed
in a custodial setting is equivalent to ‘interrogation.’
“* * * * *
“* * * Certainly not every question is an interrogation.
Many sorts of questions do not, by their very nature, involve
the psychological intimidation that Miranda is designed
to prevent. A definition of interrogation that included any
question posed by a police officer would be broader than
that required to implement the policy of Miranda itself.”
Booth, 669 F2d at 1237.
With the foregoing legal principles in mind, we turn
to the issues in this case. As we noted, once a suspect has
invoked the rights to remain silent and to counsel under
Article I, section 12, police must immediately cease interro-
gation unless the suspect initiates further conversation with
the police. Isom, 306 Or at 593. In this case, then, the ques-
tions are (1) whether defendant himself initiated further
conversation with the police and, if not, (2) whether police
continued unlawfully to interrogate him.
The Court of Appeals answered the first question in
the negative. Boyd, 270 Or App at 47. On review before this
court, defendant contends that the Court of Appeals was
correct in that respect. The state contends that “defendant
initiated a conversation” with Lewis by asking, “Is anybody
going to tell me why I’m here, I need to call my baby girl
because she’s going to wonder where I’m at?”
We conclude that the Court of Appeals was correct.
In arguing that defendant “initiated” further conversation
with the police, the state focuses on whether any police
interrogation that occurred was in any way prompted by
something that defendant said first. That, however, is not
the test. The test is whether a defendant’s questions or
statements indicate that he or she “was willing to enter into
a generalized discussion of the substance of the charges
without the assistance of counsel.” Meade, 327 Or at 340. A
defendant merely asking why he or she has been taken into
custody does not satisfy that test, and the state does not
appear to contend otherwise.
Cite as 360 Or 302 (2016) 319

The Court of Appeals also answered the second
question in the negative. The court explained that, when
Lewis asked defendant whether he recalled having a con-
versation with Myers about defendant having killed his
girlfriend and whether defendant had referred to his girl-
friend as his “baby girl,” those questions were not of such
a nature that Lewis should have known they would likely
elicit an incriminating response from defendant. Boyd, 270
Or App at 47-48. On review, defendant argues that the court
erred in so concluding. The state, meanwhile, argues that
the court correctly determined that Lewis’s questions were
merely “follow-up” questions intended to clarify the nature
of defendant’s inquiries.
We conclude that defendant is correct that the Court
of Appeals erred. As this court explained in Scott, whether
police questioning constitutes unlawful “interrogation” for
Article I, section 12, purposes depends on whether “the sub-
stance of the questions posed to [the] defendant and the
manner in which those questions were asked” demonstrated
that they were “likely to elicit some type of incriminating
response.” 343 Or at 203-04. In this case, when defendant
asked why he had been taken into custody, Lewis responded
with questions of his own about whether defendant was refer-
ring to his girlfriend Archibald and whether he recalled the
earlier conversation with Myers, when Myers told defendant
that Archibald was dead. It should be recalled that Lewis
was present when defendant had that prior conversation
with Myers, and he was aware of defendant’s response to
that conversation. Specifically, Lewis knew that defendant
had become agitated when told that his girlfriend had been
killed, that he had disclaimed any memory of an altercation
with his girlfriend, and that he had claimed not to remem-
ber how his hand had been hurt. Lewis knew that defendant
had denied knowing that his girlfriend was dead and that, in
fact, defendant had asserted at least six times that he did not
believe that his girlfriend was dead. In other words, Lewis
was well aware that defendant’s memory of the assault was
very much in issue and that posing the questions that he
did was likely to agitate him. In that context, Lewis should
have known that any further questioning about defendant’s
memory concerning the assault or the investigation into the
320 State v. Boyd

assault was reasonably likely to elicit from defendant an
incriminating response, either in cornering defendant into
a possibly far-fetched theory of the defense or in provoking
him to make potentially inconsistent statements about his
memory of the events that later could be used to impeach
him.
The state argues in the alternative that, even if
Lewis’s questions constituted unlawful interrogation, those
questions did not produce any incriminating information.
According to the state, the incriminating statements that
defendant sought to suppress occurred only after defendant
told Lewis that he wanted to talk to Myers. Citing State v.
Acremant, 338 Or 302, 108 P3d 1139, cert den, 546 US 864
(2005), the state argues that, even when an officer disre-
gards a suspect’s invocation of Article I, section 12, rights,
the suspect may later validly waive his or her rights and
speak with police so long as the defendant’s later renewal of
contact with police was not a product of the earlier unlawful
interrogation.
We are not persuaded by the state’s alternative argu-
ment. In Acremant, the defendant was arrested in Stockton,
California, on suspicion of having committed two murders in
Oregon. He was transported to the local police station. Two
Oregon police detectives met with the defendant, informed
him of his Miranda rights, and confirmed that the defen-
dant understood those rights. Id. at 317-18. The defendant
spoke with the detectives for a short time, but then invoked
his right to counsel. The Oregon detectives said that they
were “disappointed” that the defendant had elected to end
the interview, that they were interested in hearing his side
of the story, and that they were curious about his motive for
the murders. There followed an approximately 13-minute
conversation about the investigation, including the detec-
tives’ theory of his motive for the crimes. The two Oregon
detectives ultimately left, saying to the defendant that they
would be in Stockton for a few more days and that, if he
decided that he wanted to talk to them, he should let the jail
staff know. Id. at 318-19.
About an hour later, the defendant knocked on
the door of the interview room and asked to speak to the
Cite as 360 Or 302 (2016) 321

detectives from Oregon. Shortly after that, two different
Oregon detectives met with him, readvised him of his con-
stitutional rights, and interviewed him. During that inter-
view, the defendant made inculpatory statements about
the two murders. Id. at 319. The defendant later moved to
suppress those statements, but the trial court denied the
motion. Id. at 320-21.
On review of the denial of the motion, this court
affirmed. The court began by concluding that the first two
Oregon detectives had indeed violated the defendant’s rights
under Article I, section 12, when they continued to probe
him about the murders after he had invoked his right to
counsel. Id. at 322. But the court concluded that the inculpa-
tory statements that the defendant later made to the police
need not be suppressed, because the prior unlawful interro-
gation had not “induced” the defendant to make them. Id. at
322-23. The court noted that the first two detectives had left
the defendant alone for an hour, after which time he reiniti-
ated contact with them on his own. Id. at 323.
This case is distinguishable. In Acrement, there was
a clear break of approximately one hour between the unlaw-
ful interrogation and the defendant’s later unprompted
reinitiation of contact with the police. In this case, there
was no break at all. In this case, unlike Acremant, there
was a causal connection between Lewis’s interrogation of
defendant and defendant’s request to talk with Myers. After
defendant asked why he had been taken into custody, Lewis
asked defendant if he remembered Myers telling him why
he had been arrested and stated further that, in fact, Lewis
remembered Myers telling defendant that he had been
arrested for killing his girlfriend. Defendant immediately
became “agitated” and responded that, “no, no, she ain’t
dead, you’re lying and * * * I want to talk to the detective
that you said I talked to.” Defendant’s request to speak with
Myers thus was hardly unprompted. It was a direct response
to Lewis’s interrogation of defendant in violation of Article I,
section 12.
We conclude that police interrogated defendant in
violation of his state constitutional right to counsel and that
the incriminating statements to Myers that resulted from
322 State v. Boyd

that violation should have been suppressed. The state con-
cedes that, if the trial court erred in failing to grant defen-
dant’s motion to suppress, the admission of his statements
was not harmless. The case therefore must be reversed and
remanded for a new trial. Because of our decision on state
constitutional grounds, we need not address the parties’
arguments under the Fifth Amendment.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.