No. 557 June 17, 2026 689
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
FREDDIE LARAY CRAWFORD,
Defendant-Appellant.
Hood River County Circuit Court
21CR44785; A179833
Robert S. Raschio, Judge.
Argued and submitted September 27, 2024.
Daniel C. Silberman, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.*
O’CONNOR, J.
Reversed and remanded.
* O’Connor, J. vice Mooney, S. J.
690 State v. Crawford
Cite as 350 Or App 689 (2026) 691
O’CONNOR, J.
In this criminal case, defendant challenges the trial
court’s denial of his motion to suppress evidence. The question before us is whether defendant was in compelling circumstances under Article I, section 12, of the Oregon Constitution, prior to being advised of his right to remain silent and his
right to counsel during a police interrogation. Under the totality of the circumstances of this case, the roadside traffic collision investigation escalated into compelling circumstances
prior to the officer advising defendant of his rights. The trial court thus erred when it denied the motion to suppress. We
reverse and remand because the error was not harmless.
The state charged defendant with driving under the
influence of intoxicants (DUII), ORS 813.010; reckless driving, ORS 811.140; and failure to perform the duties of driver when property is damaged, ORS 811.700. Defendant moved
to suppress evidence, and the trial court granted the motion
in part and denied it in part. Defendant proceeded to a jury
trial. The court entered a judgment of acquittal on the charge of failure to perform the duties of driver. The jury found defendant not guilty of DUII and guilty of reckless driving.
Defendant appeals the judgment of conviction for
reckless driving. He assigns error to the trial court’s denial of his motion to suppress, renewing three arguments that
he raised in the trial court. We write to address only the
compelling circumstances issue because that obviates the
need to resolve the other two arguments.1 The trial court
1
Defendant’s second argument involves whether the trial court erred when it analyzed whether the evidence obtained in a warranted search should have been suppressed as a result of a separate Article I, section 12, violation under State v. Rohrs, 157 Or App 494, 970 P2d 262 (1998), aff’d, 333 Or 397, 40 P3d 505 (2002). The Article I, section 12, compelling circumstances violation requires the suppression of the evidence obtained from the warrant, as we explain below, and we thus do not separately address the remedy for the Rohrs violation.
In his third argument, defendant challenges the officer’s search of his car incident to arrest as violating his rights under Article I, section 9, of the Oregon Constitution. Defendant acknowledges that his argument is foreclosed by State v. Stevens, 329 Or App 118, 540 P3d 50 (2023), rev den, 372 Or 437 (2024). He maintains that Stevens was wrongly decided and notes that the issue is pending before the Supreme Court in State v. Barajas (S071120). If we were to reach that issue, then Stevens would control. But we do not reach the issue because the evidence obtained from the officer’s search of defendant’s car must be suppressed because of the Article I, section 12, violation, as we explain below. 692 State v. Crawford
concluded that defendant was not in compelling circumstances and that Miranda warnings were thus not required
prior to the point at which the officer arrested defendant
and provided the Miranda warnings. Defendant argues that
an Oregon State Police trooper interrogated him while he
was in compelling circumstances without first advising him
of the Miranda rights,2 in violation of Article I, section 12. The state responds that the trial court correctly determined
that defendant was not in compelling circumstances. We
conclude that a reasonable person in defendant’s circumstances would have felt compelled to answer the officer’s
questions prior to the point at which the officer arrested
defendant and provided defendant with Miranda warnings.
I. STANDARD OF REVIEW
We are bound by the trial court’s findings of fact
“if there is constitutionally sufficient evidence in the record to support those findings.” State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). If the trial court did not make express fact
findings on a fact necessary to its decision “and there is evidence from which a fact could be decided in more than one
way, we presume that the trial court decided the fact in a
manner that was consistent with the trial court’s ruling.”
State v. Miller, 375 Or 173, 176, 589 P3d 151 (2026). We
then review a trial court’s denial of a motion to suppress for legal error, and “assess anew” whether the facts meet the
requirements of Article I, section 12. Id.
II. FACTS
Whether a person was in compelling circumstances
requires a fact-intensive analysis of the totality of the circumstances. State v. Grimm, 290 Or App 173, 178, 414 P3d
435, rev den, 363 Or 283 (2018). We thus describe the facts
in detail.
2
“Miranda rights” refers to the advice of rights required under the Fifth Amendment to the United States Constitution as explained in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). Article I, section 12, independently requires Miranda warnings or similar warnings when a person is in custody or compelling circumstances. State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987). The Oregon Supreme Court refers to the rights under both constitutions as Miranda rights, for ease of reference, and we follow suit. State v. RobleBaker, 340 Or 631, 633 n 1, 136 P3d 22 (2006).
Cite as 350 Or App 689 (2026) 693
The state called a single witness to testify at the
hearing on defendant’s motion to suppress, Oregon State
Police Trooper Ferrer. The court admitted four exhibits
offered by the state: (1) Ferrer’s body camera video, (2) dash camera video from Ferrer’s patrol car, (3) photos from the
scene, and (4) an affidavit for a search warrant for defendant’s blood and urine. Defendant did not present evidence
at the hearing. Nearly all of the encounter between Ferrer
and defendant was video recorded, and the parties did not
seriously dispute the facts.
Late in the afternoon on a sunny day in early
September, an eyewitness, Evans, reported a single-car
crash to the police in Hood River County. Evans said that
a man driving a dark sedan with no one else in the vehicle
had hit the center barrier on Interstate 84, threw a beer can in a paper bag out of the window, and continued driving for
about a mile before the car failed. Evans provided the car’s
license plate number and said the car had significant damage to the driver’s side and could no longer be driven.
Ferrer responded and drove to the scene. On the
way, Ferrer noticed a scuff on the center barrier and that
the barrier had been “pushed slightly” from an impact. Not
far from there, Ferrer saw a damaged car on the side of the
highway. The car had significant damage on the driver’s
side, including deflated tires and scuff marks consistent
with striking the center barrier. The license plate matched
the plate number provided by Evans.
A uniformed sheriff’s deputy had arrived a few minutes prior to Ferrer. The deputy parked his patrol car on
the side of the highway with its overhead lights activated,
behind another car and defendant’s car. The other car
belonged to defendant’s parents. The deputy was speaking
with defendant and his father and examining defendant’s
car when Ferrer arrived. Defendant’s mother was sitting in
the passenger seat of her car. The deputy approached Ferrer
and the deputy told Ferrer that defendant said that “they”
blew a tire and pulled up about 30 minutes ago.
Ferrer approached defendant, who had walked back
to his parents’ car, and asked defendant if he had been
694 State v. Crawford
driving the car. Defendant said that he owned the car and
that nobody had been driving. Ferrer laughed and asked,
“How did it get here?” Defendant said his girlfriend had
driven it the day before and she had blown out a tire. Ferrer expressed disbelief and responded that he “was here yesterday” and had not seen the car. Defendant repeated that
his girlfriend had driven the car yesterday and said that
she had blown a tire. Ferrer asked defendant for his driver’s license. Defendant asked why, and this exchange followed:
“[TROOPER FERRER:] Because at this point, I’m
investigating a crash, and we have a witness who witnessed
the crash and I believe that you were driving at this point.
“[DEFENDANT:] Just because you believe it—
“[FERRER:] Like I said, we have a witness that witnessed the crash.
“[DEFENDANT:] Can you bring that witness here
then?
“[FERRER:] I can certainly talk with them again.
Okay? But right now, I’d like your driver’s license and you
are not free to leave.
“[DEFENDANT:] I’m not going anywhere. What I am
saying is, basically, I am being detained right now?
“[FERRER:] Yes.
“[DEFENDANT:] Okay. [Defendant removes his license
from his wallet and hands it to Ferrer.] Can you also bring
that witness here?
“[FERRER:] I can’t make them come anywhere but I
can certainly talk to them.
“[DEFENDANT:] But you just said there is witness
that spoke—
“[FERRER:] Yeah, on the telephone.3
Ferrer then said, “Let’s walk up here to the car,
okay?” Defendant and Ferrer walked to defendant’s car,
which was parked approximately 10 to 20 feet in front of
his parents’ car. Defendant’s father stood in front of his car,
3
The quotations are based on our transcription of the audio from Ferrer’s body camera video.
Cite as 350 Or App 689 (2026) 695
and his mother remained in the passenger seat. The deputy stood at the back of defendant’s car, positioning himself between defendant’s parents, defendant, and Ferrer.
Ferrer held his hand over the hood of the car and said
to defendant, “Bro this thing’s been running. This thing’s
been moving. It’s not just parked here since yesterday.”
Defendant responded that he was not trying to give Ferrer
a “hard time,” but “you’re not going to tell me I’ve been driving when I know I haven’t. The sun is right here beaming. It
could be hot, it could be anything. I’m not going to sit here and let you say I have been driving—.” Ferrer interrupted
him and asked, “How much have you had to drink today,
sir?” Defendant responded that he had not been drinking.
Ferrer told defendant that a beer can had been thrown out
when the crash occurred. Defendant asked if Ferrer was
going to blame that on him also. Ferrer responded that the
witness saw him throw it out and that “we can make this
easy or hard, it’s totally up to you whether you’re going to
be honest or not.” Defendant responded that he was trying
to be as honest as he could and again said that he was not
trying to give the officer a hard time, but he was not going
to let him accuse him of something he had not done.
Ferrer then asked defendant if he would “do some
tests just to make sure you are okay today.” Defendant
expressed frustration and said he was trying to make
it back to Portland because he had to go to work soon.
Ferrer asked, “Why are you drinking before you go to work
then?” Defendant did not respond. Ferrer said, “Look, I can
smell alcohol on your breath, it’s very obvious.” Defendant
responded that he was trying to get to work and that he
was willing to cooperate with Ferrer. Ferrer said, “So you’re willing to do some tests then, is that correct?” Defendant
said, “Okay, I have been drinking yesterday, is that going to make me guilty?” Defendant and Ferrer briefly talked over
each other, and defendant said, “No, I’m not gonna. I refuse, sir.” Ferrer said, “Okay. Well, at this time I’m going to put you under arrest.” He handcuffed defendant and informed
him of the Miranda rights, and defendant indicated that he
understood. Ferrer placed defendant in the backseat of his
patrol car.
696 State v. Crawford
Ferrer then spoke with defendant’s father, who said
that he came from Portland to help defendant get a new tire
because defendant had called and said he had blown a tire.
Ferrer spoke with defendant’s mother. She confirmed what
defendant’s father had said.
Ferrer searched defendant’s car. He found a lighter
on the driver’s seat and eye drops and a small amount of
loose marijuana in the center console, and he smelled alcohol and freshly burnt marijuana.
Ferrer returned to the patrol car. Defendant asked
him to turn on the air conditioning. Ferrer told defendant
that the air conditioning was broken, apologized, and rolled
down the window. Defendant said that he had not broken
any laws and that he did not understand why he was being
arrested. He asked where the witness was who said he had
been driving. Ferrer explained that defendant’s parents said
they drove here to pick up defendant. Defendant said “no.”
Ferrer said, “They did tell me that. They said you’d called
them because you claimed that you blew a tire.” Defendant
said, “Exactly, they gave me a ride here.” Ferrer said that
was not what defendant’s parents had told him. Ferrer said
he did not want to “play games” with defendant and again
repeated what Evans had reported. Ferrer told defendant
that he had “obviously” been drinking and driving. Ferrer
and defendant discussed defendant’s parents moving defendant’s car instead of it being towed. Ferrer told defendant’s parents that he would allow them to move the car to save
defendant money. He also explained that he would release
defendant to his parents’ custody later that evening.
Ferrer drove defendant to a police station in Hood
River. The drive took about 20 minutes, and defendant dozed
for a portion of the drive. At the station, Ferrer asked defendant to submit to a breath test. Defendant said he was concerned that he would fail because he had been drinking a
lot with his girlfriend the night before and he was a smoker. Ferrer told defendant that being a smoker does not prevent
a person from providing a breath sample. Defendant refused
to submit to a breathalyzer test. Ferrer placed defendant in
a holding cell.
Cite as 350 Or App 689 (2026) 697
Ferrer prepared an affidavit in support of a request
for a search warrant to obtain defendant’s blood and urine
to test them for intoxicants. In the affidavit, Ferrer wrote
that he had probable cause that defendant committed DUII
because of poor driving, poor walking and balance, “slurred
speech that smelled of alcohol,” watery eyes, defendant’s
refusal to perform field sobriety tests (FSTs), defendant’s
refusal to perform the breath test, defendant’s admission
to drinking heavily the previous night, and because his car
“smelled strongly of alcohol and burnt marijuana.” A judge
issued the search warrant. Three hours after defendant
refused the breathalyzer test, the blood draw revealed a
0.012 blood alcohol content (BAC). The urine sample tested
positive for marijuana use. At trial, an expert testified that the urine test result showed only that defendant had used
marijuana sometime during the previous 30 days.
The deputy found a beer can on the highway, near
where defendant’s car struck the center barrier. The can
was similar in color to Evans’s description of the beer can
that she saw the driver throw out of the car’s window, but it did not have a paper bag around it or near it.
As noted above, the state charged defendant with
DUII, reckless driving, and failure to perform the duties of
a driver. Pretrial, defendant moved to suppress “all physical evidence seized and gathered from [defendant’s] vehicle, all
in and out of custody statements of the defendant, and all
evidence deriving therefrom.” Defendant’s motion identified
specific evidence that should be excluded, consistent with
defendant’s arguments on appeal.
The trial court granted the motion in part and
denied it in part. The court determined that Ferrer had
violated defendant’s Article I, section 12, privilege against compelled self-incrimination when he asked defendant to
perform FSTs without providing the Rohrs admonishment.
The court denied the remainder of defendant’s motion. It
determined that defendant was not in custody or compelling circumstances prior to Ferrer providing the Miranda
warnings and that Ferrer’s search of defendant’s car was
justified by the search-incident-to-arrest exception to the
warrant requirement. The court suppressed defendant’s
698 State v. Crawford
refusal to perform the FSTs, but it did not suppress any
other evidence. As noted above, defendant challenges all
three rulings on appeal, but we reach only the compelling
circumstances ruling.
III. ANALYSIS
A. Article I, section 12, Compelling Circumstances
Article I, section 12, of the Oregon Constitution
provides that “[n]o person shall * * * be compelled in any
criminal prosecution to testify against himself.” Miranda
warnings protect a defendant’s Article I, section 12, right
against compelled self-incrimination. State v. Rodriguez,
337 Or App 728, 734, 564 P3d 471 (2025). That right is “similar to, but broader than,” a defendant’s Fifth Amendment
right against self-incrimination, as established in Miranda
v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).
State v. Reed, 371 Or 478, 483-84, 538 P3d 195 (2023).
Article I, section 12, requires a law enforcement officer to
provide a person with Miranda warnings or Miranda-like
warnings when a defendant is in full custody or compelling circumstances. State v. Roble-Baker, 340 Or 631, 638,
136 P3d 22 (2006); State v. Schwerbel, 233 Or App 391,
395, 226 P3d 100, rev den, 349 Or 172 (2010) (explaining
that “full custody” means when a suspect “has been formally arrested or placed under restraint by police acting in
their official capacity” (internal quotation marks omitted)). That is, to protect a person’s privilege against compelled
self-incrimination, Article I, section 12, requires Miranda
warnings or Miranda-like warnings when law enforcement
interrogates a person who is not in custody when the circumstances become compelling.
When a defendant moves to suppress their own
statement, the state must prove by a preponderance of the
evidence that the statement was voluntary, including that
any “unwarned statements were made before the circumstances became compelling.” Roble-Baker, 340 Or at 639.
“The question whether the circumstances were compelling * * * turns on how a reasonable person in the suspect’s
position would have understood [their] situation.” State v.
Shaff, 343 Or 639, 645, 175 P3d 454 (2007). We consider the
Cite as 350 Or App 689 (2026) 699
totality of the circumstances and ask whether law enforcement created a “police-dominated atmosphere,” using a
nonexclusive list of factors, including: “(1) the location of the encounter; (2) the length of the encounter; (3) the amount of pressure exerted on the defendant; and (4) the defendant’s
ability to terminate the encounter.” Rodriguez, 337 Or App
at 735 (citing Shaff, 343 Or at 645, and Roble-Baker, 340 Or
at 640-41). “We consider each of those factors as we assess
all of the circumstances of the encounter, keeping in mind
that except in the most extreme cases, no single factor is
dispositive.” Rodriguez, 337 Or App at 735 (internal brackets and quotation marks omitted).
The purpose of advising a person of their Miranda
rights is to “counter the coercive effects inherent in custodial interrogations.” Miller, 375 Or at 183 (internal quotation marks omitted). The Miranda warnings, which include
the right to remain silent and the right to counsel during
interrogation, help “counteract” the coercive atmosphere,
thus increasing the likelihood that a statement made in
custody or compelling circumstances “is the product of free
choice.” Id. (internal quotation marks omitted). An officer
must advise a person of their rights before interrogating a
person in custody or compelling circumstances “because the
right to be free from compelled self-incrimination is fulfilled only when the person is guaranteed the right to remain
silent unless he chooses to speak in the unfettered exercise
of his own will.” Id. (internal quotation marks omitted).
Defendant asserts that he was subject to interrogation while in compelling circumstances and without receiving Miranda warnings. The state counters that defendant
was not in compelling circumstances because the encounter
was a routine traffic stop or typical DUII investigation. See State v. Nelson, 285 Or App 345, 351, 397 P3d 536 (2017)
(explaining that a traffic stop or an investigatory detention does not require Miranda warnings “so long as the stop is no
more lengthy or coercive than is typical”); State v. Prickett, 324 Or 489, 494-95, 930 P2d 221 (1997) (administering FSTs
does not, by itself, constitute compelling circumstances).
“Routine” traffic stops can escalate into compelling circumstances. See Schwerbel, 233 Or App at 395-98
700 State v. Crawford
(concluding that the officer’s routine traffic stop of the defendant for driving with an unsafe vehicle became compelling
circumstances and required Miranda warnings once the
officer suspected the defendant of driving with a suspended
license after running the defendant’s identification and
detaining him); State v. McMillan, 184 Or App 63, 68-69, 55
P3d 537 (2002), rev den, 335 Or App 355 (2003) (concluding
that the officer’s statement to the defendant during a stop
that a second officer will “come back and make a decision
as to whether or not [the defendant was] going to jail” and
the fact that the officer confronted the defendant with his
observation that the defendant retrieved cash from an ATM
machine and immediately engaged in sexual activity with a
prostitute in his car escalated the stop to compelling circumstances); State v. Rose, 109 Or App 378, 380-81, 819 P2d 757
(1991) (concluding that an officer who asked the defendant if she knew that carrying a concealed weapon in a car without
a permit is illegal placed the defendant in compelling circumstances after he had stopped the defendant for erratic
driving and subsequently saw she had an empty holster,
asked her if there was a weapon in the car, and asked her
to exit the vehicle). When evaluating whether a traffic stop
has become compelling, we consider, among the totality of
the circumstances, whether the officer confronted the defendant with incriminating evidence in a coercive manner that
would cause a reasonable person in the defendant’s position
to feel compelled to answer their questions. Schwerbel, 233
Or App at 395-96.
1. Location
A traffic stop on a public roadway is less likely to contribute to a compelling atmosphere than a police-dominated
atmosphere like a police station. Compare Prickett, 324 Or
at 495 (describing a noncompelling traffic stop as “public,”
“brief,” and not “coerc[ive] or threaten[ing]”), with Grimm,
290 Or App at 180 (“[T]he unfamiliar, police station setting of the interview tended—necessarily—toward a ‘police
dominated atmosphere.’ ”).
Here, Ferrer and defendant interacted on the shoulder of a busy public highway during the late afternoon. Two
police officers, Ferrer and a sheriff’s deputy, were present. Cite as 350 Or App 689 (2026) 701
The deputy does not appear to have engaged with defendant
while Ferrer was speaking with him.
Defendant’s parents were also present. His parents
remained with their car for the majority of the encounter.
Ferrer went back and forth between defendant and his parents and was respectful when talking with them. But the
officer exerted control over when defendant could interact
with his parents. On the whole, we conclude that the location of the encounter, including the people present, weighs
against compelling circumstances. See State v. GallegosTorres, 343 Or App 65, 68, 577 P3d 822 (2025) (an encounter in a public location weighs against finding compelling
circumstances).
2. Length
Here, a few minutes elapsed between Ferrer’s first
question to defendant and when Ferrer arrested defendant
and provided Miranda warnings. However, the length of an
encounter is not dispositive. Rodriguez, 337 Or App at 736.
Even a short encounter may result in compelling circumstances depending on other circumstances, including “the
amount of pressure placed on [the] defendant during the
encounter as well as [their] ability to terminate the encounter.” Id. It was a relatively brief encounter here, and the
length weighs against concluding that the circumstances
were compelling. See Gallegos-Torres, 343 Or App at 68 (concluding that a 10-minute-long encounter in a public location
weighed against finding compelling circumstances).
3. The amount of pressure exerted on defendant
Even a brief encounter can become compelling
under Article I, section 12. “The amount of significance
we assign to the length of the encounter depends * * * on
the qualitative dynamics of time and the amount of pressure placed on defendant during the encounter as well as
[his] ability to terminate[.]” Rodriguez, 337 Or App at 736
(internal quotation marks omitted). We consider “the use
of aggressive and coercive police interrogation practices,
especially including those explicitly predicated on assumptions of a suspect’s guilt or calculated to contradict a suspect’s assertions of innocence” to be more significant for our 702 State v. Crawford
analysis of how a defendant understood their situation than
the objective length of time. Id. (internal quotation marks
and punctuation omitted)).
In many police-citizen encounters, the most significant factor for evaluating the amount of pressure put on
a defendant is “whether the officer[ ] used evidence of guilt in a coercive manner when they confronted defendant with
that evidence.” Rodriguez, 337 Or App at 737 (internal quotation marks, brackets, and punctuation omitted; emphasis
in original). Specifically, we have concluded that an officer “expressly confronting a suspect with evidence of probable
cause * * * may make the circumstances sufficiently compelling to require Miranda warnings.” McMillan, 184 Or App at
68; see also State v. Werowinski, 179 Or App 522, 532, 40 P3d 545, rev den, 334 Or 632 (2002) (explaining that confronting
the defendant with witness statements that incriminated
the defendant would have made a reasonable person in the
defendant’s situation understand that he was being questioned in compelling circumstances). For example, an officer’s statement that they believe a defendant had been driving
impaired, without more, “would not be understood by a reasonable person to be pressure on [them] to answer questions.” Nelson, 285 Or App at 354. By contrast, informing a defendant that the officer will decide whether to take the defendant to jail and then confronting the defendant with evidence that the defendant solicited a sex worker weighs in favor of
compelling circumstances. McMillan, 184 Or App at 68-69.
Here, the coercive nature of the encounter escalated quickly as Ferrer increased the pressure on defendant.
Within 40 seconds of engaging defendant, Ferrer told defendant that a witness had observed a car crash and that Ferrer
believed defendant was driving the car, despite defendant’s
statements denying that he had driven the car. A little less
than two minutes after engaging defendant, Ferrer asked
defendant how much he had to drink that day and defendant
denied drinking at all that day. Ferrer told defendant that
a witness had seen him throw a beer can out of the window
and that “we can make this easy or hard, it’s totally up to you whether you’re going to be honest or not.” A reasonable person in defendant’s circumstances would have understood Ferrer
Cite as 350 Or App 689 (2026) 703
to have communicated that Ferrer believed defendant was
lying about drinking and driving and, if defendant did not
tell Ferrer the truth (that is, admit to drinking and driving), then Ferrer would make this “hard” for defendant. Thus, the
intensity of the encounter quickly escalated even though the
duration was short. Accordingly, this factor weighs in favor of finding compelling circumstances.
4. Defendant’s ability to terminate the encounter
A defendant’s inability to terminate an encounter
during a traffic stop or relatively brief investigative stop to investigate a crime “does not usually result in compelling
circumstances” by itself. Gallegos-Torres, 343 Or App at 69.
When an officer expressly informs a defendant that they are
“detained,” however, that weighs in favor of finding compelling circumstances. Compare Schwerbel, 233 Or App at 397
(officer telling the defendant he was detained weighed in
favor of compelling circumstances), with State v. Revette, 318 Or App 749, 763, 508 P3d 985, rev den, 370 Or 214 (2022)
(explaining that an officer informing the defendant that he
was free to leave no matter what the defendant told the
officer weighs against finding compelling circumstances).
Here, two law enforcement officers in patrol cars
were present. Ferrer told defendant that he was investigating a crash and asked for defendant’s identification. Defendant
asked whether he was being detained. Ferrer told him he
was detained. Immediately thereafter, Ferrer repeatedly
confronted defendant with Evans’s report and communicated to defendant that he did not believe defendant’s story. Defendant was obviously not free to leave. Ferrer taking
defendant’s driver’s license and telling him he was detained
did not elevate the encounter to compelling circumstances
on its own, but it significantly heightened the intensity of
the encounter and the pressure that would have been felt by
a reasonable person in defendant’s circumstances.
5. Totality of the circumstances
“The interplay of all four factors is important and
the synergistic effect of location, time, pressure, and ability to terminate the interrogation reflected in this record
highlights the importance of assessing the totality of the
704 State v. Crawford
circumstances over any isolated factor.” Rodriguez, 337 Or
App at 739. Under the totality of the circumstances in this
case, defendant was in compelling circumstances under
Article I, section 12, when the officer told defendant that a witness had seen him throw a beer can out of the window
and told defendant that “we can make this easy or hard, it’s
totally up to you whether you’re going to be honest or not.”
Prior to that point, the circumstances had escalated quickly from a noncoercive crash investigation to
compelling circumstances. From the start of the encounter,
Ferrer clearly communicated that he believed defendant
was lying to him about how the crash occurred. Ferrer then
directed defendant’s movement away from his parents to
defendant’s car, where he confronted defendant with physical evidence that contradicted defendant’s statements that
he had not driven the car that day. The uniformed deputy
placed himself between defendant, Ferrer, and defendant’s
parents. Ferrer informed defendant that he was detained
and not free to leave. Ferrer continued to tell defendant that he did not believe his statements, and to confront defendant
with evidence that contradicted defendant’s claim that he
had driven. When defendant protested that he was telling the truth, Ferrer abruptly asked “how much” he had
to drink that day. That question assumed that defendant
had been drinking, and circumstances of the encounter to
that point made it clear that Ferrer believed defendant had
been drinking and driving. Defendant denied drinking.
Ferrer immediately responded by telling defendant that a
witness had seen him throw a beer can out of the car’s window. Defendant responded by asking if Ferrer was going to
blame that on him also. Ferrer then told defendant that the
witness saw him do it and told defendant that “we can make
this easy or hard, it’s totally up to you whether you’re going to be honest or not.”
At that point, a reasonable person in defendant’s
position would have understood that if they were not honest, which Ferrer had communicated meant admitting to
drinking and driving, then the remainder of the encounter would be “hard.” See Schwerbel, 233 Or App at 395
(“Although an officer’s unarticulated suspicions do not
Cite as 350 Or App 689 (2026) 705
result in compelling circumstances, expressly confronting
a suspect with evidence of probable cause to arrest may
make the circumstances sufficiently compelling to require
Miranda warnings[.]” (Citing McMillan, 184 Or App at 68.)).
A reasonable person would have felt compelled to respond
to Ferrer’s accusation to avoid making the rest of the
encounter “hard.” See State v. Courville, 276 Or App 672,
678, 368 P3d 838 (2016) (recognizing that the United States
Supreme Court in Miranda explained that questioning that
projects an “aura of confidence” in a person’s guilt “undermines [the person’s] will to resist” answering the questions
(quoting Miranda, 384 US at 455)); see also Roble-Baker,
340 Or at 643 n 8 (citing Miranda for the same proposition).
The coercive effect on defendant tipped the balance of the
encounter to compelling circumstances. See Reed, 371 Or
at 484 (explaining that the purpose of requiring Miranda
warnings under Article I, section 12, is to “counter the coercive effects inherent in custodial interrogations” and circumstances that have become compelling). Miranda warnings were required to counteract the coercive effect and to
ensure that defendant’s subsequent statements were the
product of his free will. See Miller, 375 Or at 183. This case illustrates the danger of not providing the warnings. It was
only after the officer told defendant that “we can make this
easy or hard, it’s totally up to you whether you’re going to be honest or not,” that defendant admitted to drinking alcohol,
claiming that he had done so the night before, even though
he had denied drinking alcohol multiple times earlier in the
encounter.
B. Remedy for Article I, section 12, Violation
“The state bears the burden of production and persuasion to show” that subsequently obtained evidence did
not derive from an Article I, section 12, violation. State v. Swan, 363 Or 121, 133, 420 P3d 9 (2018). Physical and testimonial evidence derived from a violation of Article I, section 12, may not be used against a defendant in a criminal
prosecution. State v. Vondehn, 348 Or 462, 476, 236 P3d 691
(2010). A court must “suppress not only a defendant’s statements obtained in violation of Miranda but also evidence
derived from that violation.” State v. Jarnagin, 351 Or 703,
706 State v. Crawford
715-16, 277 P3d 535 (2012). “[T]he question whether testimonial or physical evidence derives from a prior Miranda
violation cannot be reduced to a mechanical formula but
will vary depending on the totality of the circumstances.”
Swan, 363 Or at 131. The totality of the circumstances
inquiry involves looking at the Jarnagin factors, which are
“the nature of the violation, the amount of time between
the violation and any later statements, whether the suspect
remained in custody before making any later statements,
subsequent events that may have dissipated the taint of
the earlier violation, and the use that the state has made of
the unwarned statements.”
Jarnagin, 351 Or at 716.
Similarly, a defendant seeking to “exclude evidence
obtained in a warranted search must establish a minimal
factual connection between the illegality asserted as a
basis for suppression and the challenged evidence.” State v.
DeJong, 368 Or 640, 654, 497 P3d 710 (2021). A defendant’s
burden to show a “minimal factual nexus” is low; it “does
not require a defendant to identify and produce evidence
related to discrete factual theories connecting unlawful conduct with the challenged evidence.” Id. at 655. A defendant
can show a minimal factual nexus if the evidence that was
obtained is connected to “some prior governmental misconduct.” State v. Johnson, 335 Or 511, 521, 73 P3d 282 (2003).
When a defendant shows a minimal factual nexus
between evidence and an earlier constitutional violation,
the burden shifts to the state to demonstrate that the evidence “would have been inevitably discovered, * * * discovered through independent means, or * * * so attenuated from
the illegality as to dissipate the taint[.]” Id. at 520; see also State v. Yaeger, 321 Or App 543, 545, 517 P3d 1029 (2022),
rev den, 371 Or 477 (2023). “[I]t is not sufficient for the state merely to show that the warrant application was sufficient
without the tainted evidence. The state must show that the
challenged evidence would have been discovered during the
warranted search even without the prior illegality.” Yaeger,
321 Or App at 548 (emphasis in original). For example,
“[e]ven when a Miranda violation has occurred,” subsequent
conduct, circumstances, or events can “break the causal
Cite as 350 Or App 689 (2026) 707
chain” if the subsequent conduct, circumstances, or events
were “either not affected by or w[ere] only tenuously connected to a prior illegality.” State v. Williams, 320 Or App
705, 715, 514 P3d 501 (2022) (analyzing whether the defendant’s voluntary consent was sufficient to “attenuate [the]
prior violation” of Miranda (internal quotation marks omitted)). Ultimately, this is a factually intensive inquiry, and “[t]here is a range of circumstances that can affect whether
subsequently discovered evidence derives from the failure
to give required Miranda warnings.” Id. at 722 (internal
quotation marks omitted).
DeJong implicitly overruled our cases that had
approved of a trial court simply excising the evidence
derived from the constitutional violation from a warrant
and then evaluating whether the affidavit in support of
the request for the warrant provided probable cause without the excised evidence. Id. DeJong involved a violation of
the defendant’s Article I, section 9, rights. 368 Or at 642.
In Yaeger, we applied the DeJong analysis to a warranted
search that followed an Article I, section 12, violation. 321 Or App at 547-50.
In this case, defendant asks us to determine which
evidence derived from the violation by applying the test from Jarnagin and to conclude that the Miranda violation requires
suppression of all subsequently discovered evidence, including the evidence in defendant’s car and the blood test and
urine test results. He argues that the subsequent events,
including the belated Miranda warnings and the judge’s
issuance of the warrant for his blood and urine, did not dissipate the taint from the Article I, section 12, violation, and he notes that the state did not attempt to establish attenuation in the trial court. The state does not respond to the merits
of those arguments. Instead, it argues in a footnote that the prosecutor “likely” did not advance any attenuation arguments because defendant did not argue below that the trial
court should suppress the evidence in his car or the results of the blood or urine tests as a result of the Miranda violation. We disagree that defendant did not raise the issue below.
Defendant filed a single motion to suppress,
argued that his statements “were coerced under compelling
708 State v. Crawford
circumstances,” and asked the court to “suppress all physical evidence seized and gathered from [defendant’s] vehicle, all in and out of custody statements of [ ] defendant, and all evidence deriving therefrom.” To be sure, the motion also cited other
constitutional provisions, and it could have been more precise. But the motion was adequate to place the state and the court
on notice that defendant sought to suppress all physical and
testimonial evidence obtained after the point at which the
encounter became compelling under Article I, section 12.
On the merits, defendant established a minimal
factual nexus between the Article I, section 12, compelling
circumstances violation and the subsequently discovered
evidence, including the evidence discovered as a result of
the warranted search. The state did not attempt to meet
its burden to establish attenuation in the trial court, and
it has not advanced an attenuation argument on appeal.
Attenuation is a fact-dependent question that we will not
address for the first time on appeal. See, e.g., State v. Gabr, 324 Or App 588, 596-97, 527 P3d 49 (2023) (declining to
address the state’s attenuation argument because there
were questions as to how the record might have developed
differently or what inferences the trial court might have
drawn from the record). We thus conclude that the evidence
should have been suppressed.
Article VII (Amended), section 3, of the Oregon
Constitution requires us to affirm “notwithstanding any
error committed during the trial” if the error was harmless. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). An
error is harmless when “there is little likelihood that a
particular error affected the verdict.” Id. (internal quotation marks, brackets, and punctuation omitted). The state
does not argue that any trial court error in concluding that
the circumstances of the encounter did not become compelling prior to the point at which Ferrer provided Miranda
warnings was harmless. We conclude that the error was
not harmless. The prosecutor relied at trial on the physical
evidence found in defendant’s car, the video of him dozing
in the patrol car, Ferrer’s observations of defendant, some
of defendant’s statements to Ferrer after the circumstances
became compelling, and the results of the blood and urine
Cite as 350 Or App 689 (2026) 709
tests, to discredit defendant and to urge the jury to find him guilty of reckless driving. On this record, there is more than a little likelihood that the error affected the jury’s guilty verdict for reckless driving.
IV. CONCLUSION
The trial court erred when it determined that the
circumstances of the encounter did not become compelling
prior to the point at which Ferrer advised defendant of his
Miranda rights, in violation of Article I, section 12. The
subsequently obtained physical and testimonial evidence
should have been suppressed. The error was not harmless.
Reversed and remanded.