STATE of Oregon, Respondent,
v.
William Francis BRADBURY, Jr., Appellant.
37744, 37745; CA A35697, A35698.
Court of Appeals of Oregon.
Argued and Submitted January 31, 1986. Decided August 13, 1986. Reconsideration Denied October 17, 1986.*1052 John P. Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.
RICHARDSON, Presiding Judge.
In this consolidated appeal, defendant appeals two convictions for burglary in the first degree. ORS 164.225. He assigns error to the trial court's refusal to suppress his confessions and evidence that the police seized without a search warrant from his sister's apartment. We affirm.
Defendant was under arrest and in custody at the police station when, after appropriate Miranda warnings, he stated that he wanted to talk to an attorney. Officer Sawyer asked him if he could search the apartment where defendant lived with his sister. Defendant consented, and the police seized items from the apartment that they believed had been stolen in two burglaries. Defendant argues that the use at trial of that evidence violated his right against compelled self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution and the Fifth Amendment. More specifically, he argues that, under Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and State v. Kell, 77 Or.App. 199, 712 P.2d 827 (1986), the officer was foreclosed from asking him for consent to search after he had invoked his right to counsel. We decided the same issue adversely to defendant's position in State v. Baumeister, 80 Or. App. 626, 723 P.2d 1049 (decided this date). Defendant's assertion that his consent was not voluntary is also without merit. His consent to the search was valid, and the trial court did not err in admitting the evidence found during the search.
After the officers had seized the property, they brought it to the police station so that the victims of the burglaries could identify property stolen from them. They placed the items on a table just outside the room in which defendant was being held. At that point, defendant pounded on the door of the room and, when Sawyer opened it, defendant asked him what the charges were against him. Sawyer pointed to the goods on the table and said that he would be charged with burglary in connection with those items. Defendant replied, "That is bullshit. That's my stuff from Eugene." Sawyer then returned him to the room and later placed him in a holding cell. Approximately 45 minutes after he had been shown the purportedly stolen goods, defendant called for Sawyer and told him that he wanted to talk. He then confessed to his involvement in the two burglaries. He gave a second, more detailed statement several hours later.
Defendant argues that Sawyer's confronting him with the stolen goods constituted improper interrogation under Edwards v. Arizona, supra, and State v. Kell, supra, because he had invoked, and not waived, his right to counsel. He argues that his immediate reply and his subsequent confessions were tainted by that illegality and must therefore be suppressed.
Interrogation, for the purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and its progeny means "express questioning or its functional equivalent." Rhode Island v. Innis, *1053 446 U.S. 291, 300-301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980).[1]
" * * * That is to say, the term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." 446 U.S. at 301-302, 100 S.Ct. at 1689-90. (Footnotes omitted; emphasis in original.)
In appropriate circumstances, confronting a suspect with stolen goods could be deemed to constitute interrogation as defined in Rhode Island v. Innis. See State v. Guayante, 63 Or.App. 212, 663 P.2d 784, rev. den. 295 Or. 541, 668 P.2d 384 (1983); see also People v. Ferro, 63 N.Y.2d 316, 482 N.Y.S.2d 237, 472 N.E.2d 13 (1984). However, those circumstances do not exist here. Sawyer was merely responding to defendant's question when he pointed to the stolen goods. From the perception of defendant, Sawyer's conduct could not reasonably have been viewed as seeking a response. The use of the challenged statements did not violate defendant's right against compelled self-incrimination under either the state or federal constitution.
Defendant raises some arguments based on what he alleged was "excessive detention" by the police. He did not raise that issue in the trial court, and we will not consider it when raised for the first time on appeal. His argument that his confessions were not voluntary are without merit.
Affirmed.
WARDEN, Judge, 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 P.2d 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 held that the police may not interrogate a person who asserts the right *1054 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 P.2d 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 P.2d 765, rev. pending (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 exposein 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 P.2d 830, rev. den. 289 Or. 587 (1980), cert. den. 450 U.S. 968, 101 S. Ct. 1486, 67 L. Ed. 2d 617 (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 consent is sufficient to validate the search, and I see no reversible error in what followed.
NOTES
[1] This definition of interrogation appears appropriate to us for the purpose of state constitutional analysis. See State v. Smith, 70 Or.App. 675, 691 P.2d 484 (1984), rev. allowed 298 Or. 704, 695 P.2d 1371 (1985).
[1] State v. Frame, supra, was based on the federal constitution. However, it is a correct statement of state constitutional law on the point.