State v. Bradbury

WARDEN, J.,

specially concurring.

I agree with the majority that the search of the apartment defendant shared with his sister was legal but only because the sister consented to the search and, under the trial court’s findings of fact, that consent was voluntary. I do not agree that defendant’s consent, given while he was under arrest and after he had requested the assistance of counsel, was voluntary.

A person in custody is in an inherently coercive situation. The police control where he stays, where he goes, whom he sees and many other decisions which together represent a person’s autonomy. Being required to relinquish those decisions to the police necessarily affects the voluntariness of every decision the suspect makes, including decisions to talk with the police and to consent to a search. We recognize the effect of custody on the ability to decide whether to talk to the police by requiring that the police first inform a person in custody of his rights by giving the Miranda warnings. When he knows his rights and the police honor them, “the coercive atmosphere of police interrogation is to some degree dispelled.” State v. Sparklin, 296 Or 85, 89, 672 P2d 1182 (1983). (Emphasis supplied.)

No warnings, however, can fully dispell the coercive effect of custody. Because that effect, in and of itself, can prevent a voluntary waiver of the suspect’s rights, we have *618held that the police may not interrogate a person who asserts the right to counsel, unless he has counsel present or initiates renewed contact on the subject of the offense. State v. Kell, 77 Or App 199, 712 P2d 827, rev pending (1986). A person who asks for counsel thereby states that he does not feel competent to deal with the police without counsel’s assistance. State v. Rowe, 79 Or App 801, 806, 720 P2d 765, rev den 302 Or 86 (1986). Any subsequent waiver of the right to remain silent which results from a police initiative is probably the result of police exploitation of the suspect’s sense of incompetence. We cannot accept such a waiver as effective, because, legally, it is involuntary.

Kell and Rowe apply directly only to the suspect’s right to silence and to the related right to counsel under Article I, section 12, of the Oregon Constitution. However, we should treat a waiver of Article I, section 9, rights the same way. If a person is legally incapable of voluntarily consenting to talk in the absence of a lawyer, that person is also legally incapable of voluntarily consenting to talk to the police or to a search of his car, his home or anything else which the constitution protects. Both provisions protect the right to shield from official view matters which the person chooses not to expose — in one case the person’s thoughts, memories and desires, in the other the person’s self, house, papers and effects. The voluntariness of a decision to give up the constitution’s protections and to make public what the person has a right to keep private should be judged by the same standards in either situation. By those standards defendant’s consent to search the apartment was not effective, because it was legally involuntary.

I concur in the result because defendant’s sister, who shared the apartment, consented to the search. As a co-occupant, she had the power to do that. State v. Frame, 45 Or App 723, 609 P2d 830, rev den 289 Or 587 (1980), cert den 450 US 968 (1981).1 The trial court found that, although her consent was based in part on defendant’s prior consent, she would have consented in any case. There is evidence to support that finding and we are therefore bound by it. That *619consent is sufficient to validate the search, and I see no reversible error in what followed.

State v. Frame, supra, was based on the federal constitution. However, it is a correct statement of state constitutional law on the point.