State v. Durbin

HASELTON, J.,

dissenting.

The majority holds that a suspect in custody who has invoked the right to counsel must also invoke a further right to consult with counsel privately. The right to counsel cannot be so bifurcated. Rather, “confidentiality is inherent in the right to consult with counsel; to hold otherwise would effectively render the right meaningless.” State v. Penrod, 133 Or App 454, 457, 892 P2d 729 (1995). Thus, I respectfully dissent.

In State v. Spencer, 305 Or 59, 74, 750 P2d 147 (1988), the court held that Article I, section 11, of the Oregon Constitution, entitles a person to a “reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test.”1 In Spencer, the court had no occasion to explicitly consider the confidentiality of such consultations. In Penrod, we did:

*525“[W]e must first decide whether the right to consult with counsel in the criminal DUII setting includes the right to a private consultation. We conclude that it does. We believe that confidentiality is inherent in the right to consult with counsel; to hold otherwise would effectively render the right meaningless. Accord State v. Cory, 62 Wash 2d 317, 382 P2d 1019 (1963) (‘it is universally accepted that effective representation cannot be had without such privacy’); see also cases collected in 5 ALR3d 1360 (1963).” 133 Or App at 457 (footnote omitted).

The majority emphasizes — and. I acknowledge — that in Penrod, as well as in all of our post -Penrod decisions until now, the suspect or his or her counsel requested confidentiality. See 172 Or App at 519-21. That fortuity does not, however, affect the legal and practical correctness of our holding that “confidentiality is inherent in the right to consult with counsel.” Penrod, 133 Or App at 457 (emphasis added).

“Inherent” means “structural or involved in the construction or essential character of something: belonging by nature or settled habit.” Webster’s Third New Int’l Dictionary, 1163 (unabridged ed 1993) (emphasis added). Similarly, “inhere” refers to “a fixed element or attribute.” Id. To remove or qualify an essential element of the whole— here, the right to consult — renders the whole “meaningless.” Penrod, 133 Or App at 457. Thus, when a suspect invokes the right to consult with counsel, he or she is invoking (to use the shopworn metaphor) the “entire bundle of sticks” — and not the “bundle” minus a stick or two. Having invoked the whole, there is no obligation to make a further and specific request for any particular “stick.”

*526The right to consult with counsel is one, indivisible right — not one-and-a-half, or two. Decisions from other courts corroborate that truth. See, e.g., Farrell v. Municipality of Anchorage, 682 P2d 1128, 1131 (Alaska Ct App 1984) (reasonable opportunity to contact counsel “is not met when the police make no effort whatsoever to give a person who has been arrested for DWI a reasonable amount of privacy once he has contacted an attorney”); State v. Beaupre, 123 NH 155, 459 A2d 233 (1983) (officer who remained present while the suspect contacted counsel by telephone, although not asked to leave room, violated the suspect’s right to counsel: “A meaningful exercise of the defendant’s right to counsel should not depend upon whether a defendant requests permission to consult privately with his lawyer.”). See also State v. Holland, 147 Ariz 453, 158, 711 P2d 592, 595 (1985) (state may not, without justification, prevent private consultation between arrestee and lawyer when such consultation would not unduly delay investigation of driving under the influence of intoxicants; arrestee “had a right to confidentiality so long as it did not impair the investigation or the accuracy of a subsequent breath test”).

The majority deconstructs that indivisible right. It holds that a suspect’s request to consult with counsel is inadequate to trigger the state’s duty to afford the confidentiality without which “the right [is] meaningless.” Penrod, 133 Or App at 457.2 Rather, in the majority’s view, the suspect in custody must also and further specifically request privacy.

Nothing in our cases suggests, much less compels, such a requirement as a matter of law. Instead, the majority’s approach appears to rest, ultimately, on pragmatic considerations: “How hard is it to ask for privacy?” See 172 Or App at 521 (“It would have been a simple matter for defendant or his attorney to ask [Officer] Cuellar for privacy.”).

*527With respect, the majority has it backwards: How hard is it for the state and its uniformed officers to honor an explicit and unambiguous invocation of a constitutional right — the right to consult with counsel, including the confidentiality that is “inherent in that right”? Faced with such an invocation, an officer has two choices: (1) move away and provide the necessary privacy; or (2) remain near, but be fully prepared to justify why valid security concerns or the effective administration of the test compelled such proximity. That is the functional burden that Article I, section 11, prescribes:

“[I]t is not enough for the state to establish that some limitation of a defendant’s right to a private consultation was necessary to preserve evidence or for security reasons. The state must also justify the extent of the limitation under the particular circumstances.” Goss, 161 Or App at 248 (emphasis added).

See also State v. Riddle, 149 Or App 141, 148, 941 P2d 1079, rev den 326 Or 68 (1997) (“the state has not demonstrated” why the suspect’s consultation with her attorney should not have been private); Penrod, 133 Or App at 459 n 6 (same).

Here, Officer Cuellar did not move away after defendant invoked his right to consult with counsel. Instead, he remained within earshot throughout defendant’s conversation with his lawyer. Nor did Cuellar justify his continued proximity as required under Penrod, Riddle, and Goss.3 Accordingly, I would hold that the trial court erred in denying suppression of the Intoxylizer test result.

Armstrong, Wollheim, and Kistler, JJ., join in this dissent.

According to Spencer, the Article I, section 11, right to consult counsel attaches not only after formal charges have been filed, but also at certain *525investigative stages. 305 Or at 73. The point at which a person is in custody and is faced with the decision of whether or not to submit to an Intoxilyzer test is an investigative stage at which the Article I, section 11, right to counsel attaches. Id. at 74. In Spencer, the court stated:

“A person taken into formal custody by the police on a potentially criminal charge is confronted with the full legal power of the state, regardless of whether a formal charge has been filed. Where such custody is complete, neither the lack of a selected charge nor the possibility that the police will think better of the entire matter changes the fact that the arrested person is, at that moment, ensnared in a ‘criminal prosecution.’ The evanescent nature of the evidence the police seek to obtain may justify substantially limiting the time in which the person may exercise his or her Article I, section 11, right, but it does not justify doing away with it.” Id.

As described more fully below, in Penrod and other cases, we have held that a suspect’s entitlement to confidential consultation is not absolute. Rather, the state may justify a failure to provide confidentiality, but only upon the state’s showing that affording confidentiality after the preadministration observation has begun would either present substantial security concerns that could not otherwise be addressed or would so unreasonably delay the administration of the test as to materially interfere with its proper administration. Penrod, 133 Or App at 458-59. See also State v. Goss, 161 Or App 243, 248-50, 984 P2d 938 (1999).

Cuellar testified that he needed to remain close to defendant to determine whether defendant regurgitated during the preadministration observation period. However, as in Goss, the state failed to demonstrate that administration of the test would have been meaningfully impaired if Cuellar had afforded defendant privacy and then restarted the pretest observation period. See Goss, 161 Or App 248-49.