600 December 26, 2014 No. 74

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

CELSO AVILA-NAVA,

Respondent on Review.

(CC C092845CR; CA A146527; SC S061802)

En Banc

On review from the Court of Appeals*

Argued and submitted September 15, 2014.

Peenesh Shah, Assistant Attorney General, Department 

of Justice, Salem, argued the case and filed the brief for the 

petitioner on review. With him on the brief were Ellen F. 

Rosenblum, Attorney General, and Anna M. Joyce, Solicitor 

General.

Jed Peterson, O’Connor Weber, LLP, Portland, argued 

the case and filed the brief for the petitioner on review.

BREWER, J.

The decision of the Court of Appeals is affirmed. The 

judgment of the circuit court is reversed, and the case is 

remanded to the circuit court for further proceedings.

Kistler, J., filed an opinion concurring in part and concurring in the judgment, in which Linder, J., joined.

______________

* Appeal from Washington County Circuit Court, Rick Knapp, Judge. 257 Or 

App 364, 306 P3d 752 (2013).
Cite as 356 Or 600 (2014) 601

The state sought review of a decision of the Court of Appeals reversing the 

judgment of the circuit court because a police officer’s continued questioning 

of defendant after he unequivocally invoked his right to remain silent had violated defendant’s rights under Article I, section 12, of the Oregon Constitution. 

Defendant, a suspect in a robbery, was arrested and brought to a police station 

where he was given Miranda warnings by an officer. After the officer read the 

warnings to defendant, defendant asked questions about the warnings and, at 

one point, defendant said “I won’t answer any questions.” The detective believed 

that that statement indicated confusion on defendant’s part about the warnings, 

and he asked if defendant meant that he did not want to talk to the officer and 

wanted the officer to leave. The conversation continued, and defendant ultimately 

made incriminating statements. Prior to trial, the state sought to admit those 

statements. The trial court concluded that the officer had not violated defendant’s 

rights under Article I, section 12, because defendant’s statement was not an 

unequivocal invocation of his right to remain silent. Defendant appealed, and the 

Court of Appeals reversed. The state sought review. Held: (1) Defendant’s words 

“I won’t answer any questions” appeared on their face unequivocally to invoke his 

right against self-incrimination; (2) in deciding whether a defendant’s words constituted an unequivocal invocation of the right against self-incrimination under 

Article I, section 12, a reviewing court must consider those words in the context 

of the totality of circumstances existing at and preceding the time they were 

uttered, to determine whether a reasonable officer would have understood that 

the defendant was invoking that right; and (3) because there was no evidence preceding or contemporaneous with the invocation to support the trial court’s conclusion that defendant failed to unequivocally invoke his right to remain silent, 

defendant’s incriminating statements should have been suppressed.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further 

proceedings.
602 State v. Avila-Nava

BREWER, J.

Under Article I, section 12, of the Oregon Constitution, police must cease custodial interrogation when a 

criminal suspect unequivocally invokes his or her right 

against self-incrimination. State v. McAnulty, 356 Or 432, 

455, __ P3d __ (2014); State v. Davis, 350 Or 440, 459, 256 

P3d 1075 (2011). This case raises the broader question of 

what standard applies to determine whether an unequivocal invocation of the right against self-incrimination was 

made and the particular question of whether, in the context in which they were communicated, defendant’s words, 

“I won’t answer any questions,” constituted an unequivocal 

invocation of that right. The trial court found, in light of 

contextual indicia on which it relied, that defendant’s words 

did not amount to an unequivocal invocation and denied his 

motion to suppress. The Court of Appeals reversed that ruling and remanded to the trial court. State v. Avila-Nava, 257 

Or App 364, 306 P3d 752 (2013). Having allowed review, we 

affirm the Court of Appeals decision and remand this case 

to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The pertinent facts are undisputed. Hillsboro police 

officers, who were investigating a robbery for which defendant was a wanted suspect, stopped a vehicle that defendant was driving. Defendant was arrested, handcuffed, and 

taken into police custody. At the scene of arrest, an officer 

read the Miranda warnings to him from a prepared card 

that had the warnings, in Spanish, printed on it.1

 The officer read the warnings in Spanish because defendant had 

indicated that he did not speak English. After the officer 

read the warnings, defendant stated that he understood his 

rights. Officers then transported defendant to the Hillsboro 

Police Department.

1 In Miranda v. Arizona, 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694 

(1966), the Supreme Court held that the Fifth Amendment to the United States 

Constitution requires particular warnings be given when “a person has been 

taken into custody or otherwise deprived of his freedom in any significant way.” 

Those warnings are that a person “has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the 

right to the presence of an attorney, either retained or appointed.” Id. at 444.
Cite as 356 Or 600 (2014) 603

At the police station, Detectives Ganete and Hahn 

interviewed defendant. Ganete spoke Spanish throughout 

his interaction with defendant. Ganete testified that he had 

no trouble understanding defendant and that defendant 

did not appear to have difficulty understanding his questions. Ganete testified that he read the Miranda warnings 

to defendant, from a prepared card that stated (translated 

from Spanish):

“It is my [duty] to inform you before you make a declaration that you have the right to remain silent.

“Anything you say may be used against you in a court of 

law or a judicial tribunal.

“You have the right to speak to an attorney and to be 

[sic]2 present during the interrogation.

“If you do not have the funds to contract an attorney, the 

court will assign one to you without cost.”

Ganete then asked defendant whether he understood those rights. Defendant replied: “I have a question. Do 

I have to answer your questions?” Ganete responded that 

defendant “did not have to answer any questions or talk to 

me if he chose to.” Defendant then asked Ganete “why did 

mister call the police?” In response, Ganete told defendant 

that “we needed to get past first his understanding of the 

Miranda warning before we can actually begin to speak 

with each other.” Ganete then stated that defendant had to 

decide whether to talk to him or not, and Ganete read the 

Miranda warning card again. Ganete “took each right line 

by line and asked if [defendant] understood each right, and 

he understood the rights with the exception of *** where 

he questioned anything you say may be used against you in 

a court of law.” After Ganete read that warning, defendant 

said “I don’t understand what this means.” Ganete asked 

“what is it you don’t understand,” and defendant replied, 

“anything I say can be used against me.” Ganete said, “that’s 

correct. Anything you say can be used against you.” At that 

point, defendant stated: “I won’t answer any questions.”

2 As noted above, the right to counsel includes the right to have an attorney 

present during police interrogation. Defendant does not assert that any ambiguity or error in Ganete’s recital of that right is pertinent here.
604 State v. Avila-Nava

Ganete then asked if defendant meant that he 

did not want to talk to Ganete and that he wanted him 

to leave. Defendant responded, “No, I can’t talk to you if I 

don’t understand what this right means because you’re telling me I have the right to remain silent. I don’t understand 

what this right means.” At that point, Ganete again read 

the warning that “anything you say may be used against 

you.” As he was doing so, defendant interrupted him and 

said, “pardon. I’m not trying to be disrespectful. How can I 

say this?” Defendant paused before saying, “[a]nything I say 

can be used against me. It’s like I’m lying?” Ganete characterized that question as “more like [defendant] was doubtful of understanding what it meant and interpreting it as 

‘well, it’s like I’m lying then.’” Ganete proceeded to reiterate 

the warnings, because “we were kind of hung up in this—

on this right * ** because we were at this point where we 

weren’t making any progress of understanding; so I thought 

that, ‘Okay. We’ll come back to that right afterwards and 

see if he would understand then.’”

After repeating the Miranda warnings, Ganete 

asked defendant if he understood them, with the exception 

of the warning that anything that he said could be used 

against him. Defendant replied: “That’s exactly what I don’t 

understand.” Ganete

“then asked [defendant] if—how many—how many years 

of schooling did he have, and he mentioned he had up to 

sixth grade. I asked if he knew how to read Spanish, and 

he said, ‘yes, a little bit.’ And then I suggested, I says, ‘If I 

show you the Miranda rights card, are you able to read and 

understand?’ And he said, ‘yes, I can.’”

Ganete then gave the Miranda card to defendant, who read 

the warnings out loud. After defendant finished reading the 

card, Ganete said:

“‘It’s my duty to inform you before you make a declaration,’ 

you have the right to remain silent.’ [Defendant] pauses 

and asks us a question, ‘You can—you can just ask me questions then?’, and I replied, ‘If I tell—if you tell me that you 

wish to remain silent, I can’t question you.” [Defendant] 

then said, ‘Now, I understand’.
Cite as 356 Or 600 (2014) 605

“I then explained to [defendant] we needed to establish 

if he wants to speak with me or not, which is a lot different 

than if he agrees to speak with me.

“However, during my questioning, he may choose to 

answer or not answer specific questions, and that was fine 

with me.

“Finally, I asked [defendant] ‘Do you understand your 

rights?’ And he said ‘Yes,’ and then I asked, ‘Do you understand the Miranda warning card you read?’ He, [defendant] said, ‘Yes,’ and I asked ‘Do you want to speak with 

me freely?’ [Defendant] said, ‘Yes.’”

Before Ganete concluded his testimony, the trial 

court engaged him in the following colloquy:

“[The Court]: I’m a little confused. He said at one point 

that I won’t answer any questions, and then it seems pretty 

unequivocal. Why did you continue?

“[Ganete]: Because I asked at one point ‘are you saying you don’t want to talk to me at all? You just want me to 

go away?’ And his expression was, ‘no I can’t talk to you if I 

don’t understand what this right means because you’re telling me I have the right to remain silent. I don’t understand 

what this means.’

“So, your honor, I guess to clarify this, I—my understanding is that he wasn’t understanding that right, and I 

made every effort to explain to him what that meant and 

this was our going back and forth until he finally said, ‘Oh, 

I see what you’re telling me. Okay. Under that condition, 

then I want to talk to you. I understand what that right 

means.’

“[The Court]: So when he said to you, ‘I won’t answer 

any questions,’ that was phrased to you as a not a statement of—did you receive that as a statement where he was 

unequivocally exercising his rights not to talk to you, or 

was that a question he was pondering to you?

“[Ganete]: I interpreted it as a question that he was 

pondering to me from lack of understanding. I didn’t accept 

that as unequivocally, he’s saying, ‘I don’t want to talk to 

you.’”

Defendant’s counsel argued at the suppression 

hearing that, when defendant said “I won’t answer any 
606 State v. Avila-Nava

questions,” Ganete was required to terminate the interrogation, because those words have the same effect as “I choose 

to remain silent” and “I won’t talk to you.” The prosecutor 

responded that defendant had not unequivocally invoked his 

right against self-incrimination and that Ganete’s continued 

questioning was meant to ensure that defendant understood 

his rights. Because defendant indicated that he understood 

those rights before he made incriminating statements, the 

prosecutor reasoned, defendant had validly waived his right 

against self-incrimination.

The trial court denied defendant’s motion to suppress. The court explained:

“[T]he court’s responsibility is to look at the totality 

of the facts surrounding the Miranda issue, and when 

you first—so there was this discussion that was going 

on between Officer Ganete and the defendant, and they 

started getting hung up on this one right that anything 

you say can be used against you in a court and wasn’t sure 

what that was all about. And then the defendant says, ‘I 

won’t answer any questions,’ and, you know, when you first 

hear that, you think that it’s a unequivocal exercise of his 

Miranda rights, and it should be shut down at that point.

“But Officer Ganete took great effort to try to explain 

to the court that it—it wasn’t that he was exercising his 

rights. He wasn’t saying ‘I won’t answer any questions.’ It 

was that he didn’t know if he wasn’t supposed to answer 

any questions or not, and so there’s this—he was—it was 

apparent that the defendant was confused about what his 

rights were, and that’s later cleared up before defendant 

says, ‘Okay. Now I understand.’

“And so I at first thought it was actually an unequivocal 

exercise of his Miranda rights, but it was clear that that 

was—is not the case even though he did say, ‘I won’t answer 

any questions.’ But it was posed more of a—as a quandary. 

The defendant didn’t quite understand what was going on 

at the time.

“I’m supposed to look at the totality of the facts to try 

and understand this to make sure that the statements 

were voluntary, first of all, and it’s real clear that there 

were no threats. There wasn’t any coercion. There were 

no promises, no trickery, no fraud, no intoxication. He was 
Cite as 356 Or 600 (2014) 607

confused initially, which is the biggest hurdle that they 

have—that the police have at the time to allow the statements for him to be voluntary. He’s got to understand these 

obviously at least the Miranda rights and so forth, but they 

seem to be—they work through it, and the officer spent a 

lot of time with the defendant making sure he understood 

his Miranda rights. I don’t believe under the totality of the 

facts that I heard that he was trying to manipulate the 

defendant in the situation.

“So then the next question is—so I do think the statements that he made subsequently were voluntary. I haven’t 

heard the statements, but I’m assuming that they will be. 

The question is then did the defendant waive his Miranda

rights or was this comment, ‘won’t answer any questions,’ 

an unequivocal exercise of his Miranda rights, and that’s 

where I say I think the—in the totality of the facts that 

it’s not unequivocal exercise of rights. He’s trying to understand what his rights are, and that’s what we want the 

police to do when someone’s not quite understanding it to 

explain it in detail so that they—so when it’s all over with, 

and the person understands his rights, he can then say, 

‘No, I don’t want to talk to you. I won’t answer any questions. Or yeah, I’ll talk to you.’ And, apparently, after he 

understood his rights, he did decide to talk to the police.

“So from the totality of the circumstances, I do find 

that he voluntarily and knowingly waived his Miranda

rights. It’s a bit different than we typically see, but obviously, there was a Spanish speaking issue here that they 

had to work through in terms of the Miranda rights. And 

obviously, the Miranda rights aren’t really clearly interpreted from English into Spanish anyway, and so you can 

see where there’s a process that has to take place where 

these rights are explained in detail to someone who doesn’t 

speak English to be able to make sure that they clearly 

understand, and I do think he clearly understood what his 

Miranda rights were. So I will allow the statements to come 

in.”

Defendant testified at trial, and the state impeached 

him by pointing to inconsistencies between his trial testimony and his statements during interrogation. As the case 

was tried, an assessment of defendant’s credibility was 

essential to the jury’s consideration of the charges against 

him. The jury convicted defendant, and this appeal followed.
608 State v. Avila-Nava

ANALYSIS

Article I, section 12, of the Oregon Constitution 

provides that “[n]o person shall be *** compelled in any 

criminal prosecution to testify against himself.” To protect 

a person’s right against compelled self-incrimination under 

that provision, this court has held that, before questioning, 

the police must give Miranda warnings to a person who is 

in “full custody” or in circumstances that “create a setting 

which judges would and officers should recognize to be ‘compelling.’” State v. Jarnagin, 351 Or 703, 713, 277 P3d 535 

(2012); State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990). When 

an officer fails to give the requisite warnings, a court must 

suppress not only the statements that a suspect makes in 

direct response to unwarned questioning but also evidence 

that derives from or is a product of that constitutional violation. State v. Vondehn, 348 Or 462, 476, 236 P3d 691 (2010).

In Vondehn, this court examined the basis for the 

requirement that police inform people in custody of their 

right against self-incrimination under Article I, section 12. 

The court explained that,

“[b]ecause a custodial interrogation is inherently compelling, and to ensure the validity of a waiver of the right 

against self-incrimination, Article I, section 12, requires 

that the police inform a person subjected to custodial interrogation that he or she has a right to remain silent and 

to consult with counsel and that any statements that the 

person makes may be used against the person in a criminal 

prosecution. Article I, section 12, requires those Miranda

warnings to ensure that a person’s waiver is knowing as 

well as voluntary. If the police conduct a custodial interrogation without first obtaining a knowing and voluntary 

waiver of the suspect’s rights, then they violate the suspect’s Article I, section 12, rights.”

348 Or at 474; see also State v. Roble-Baker, 340 Or 631, 

638, 136 P3d 22 (2006) (“To protect a person’s right against 

compelled self-incrimination under [Article I, section 12], 

this court has held that, before questioning, police must give 

Miranda warnings to a person who is in ‘full custody’ or in 

circumstances that ‘create a setting which judges would and 

officers should recognize to be ‘compelling’”).
Cite as 356 Or 600 (2014) 609

As noted, under Article I, section 12, police must 

cease interrogation when a person in police custody 

unequivocally invokes the right against self-incrimination. 

McAnulty, 356 Or at 455. The reason for that requirement 

is that,”[w]hen the police honor [a defendant’s rights under 

Article I, section 12], if [the] defendant chooses to assert 

them, the coercive atmosphere of police interrogation is to 

some degree dispelled.” State v. Sparklin, 296 Or 85, 89, 672 

P2d 1182 (1983). When the defendant makes an ambiguous or equivocal invocation of rights under Article I, section 12, however, the police are required to ask follow-up 

questions to clarify what the person meant before proceeding with interrogation. State v. Charboneau, 323 Or 38, 54, 

913 P2d 308 (1996).3

 In determining whether the defendant 

unequivocally invoked his or her rights, “interpretation is 

only required where the defendant’s words, understood as 

ordinary people would understand them, are ambiguous.” 

Connecticut v. Barrett, 479 US 523, 529, 107 S Ct 828, 93 

L Ed 2d 920 (1987); accord State v. Kell, 303 Or 89, 99, 734 

P2d 334 (1987).4

What transpired during a custodial interrogation, 

including what a defendant said or did not say, is a question 

of fact. We are bound by the trial court’s findings of fact 

if they are supported by evidence in the record, although 

“we assess anew whether th[ose] facts suffice to meet constitutional standards.” State v. James, 339 Or 476, 481, 123 

P3d 251 (2005). That is, whether a defendant’s statements 

amounted to an unequivocal invocation of the right against 

self-incrimination, an equivocal invocation, or no invocation 

at all, is a question of law. State v. Terry, 333 Or 163, 172, 37 

P3d 157 (2001), cert den, 536 US 910 (2002).

As the trial court in this case acknowledged, defendant’s statement, “I won’t answer any questions” appeared 

on its face to be an unequivocal assertion of his right against 

3 Unlike Article I, section 12, the Fifth Amendment does not obligate officers 

to ask clarifying questions regarding a suspect’s intent in making an equivocal 

invocation. Davis v. United States, 512 US 452, 461, 114 S Ct 2350, 129 L Ed 2d 

362 (1994).

4 When a person unequivocally invokes her right against self-incrimination, 

police may reinitiate contact after a reasonable time, provide new Miranda warnings, and obtain a valid waiver. McAnulty, 356 Or at 458. 
610 State v. Avila-Nava

self-incrimination. The question is whether the trial court 

nevertheless properly determined that the statement was 

equivocal. Because it is central to our analysis, we first consider an issue that this court previously has not directly 

addressed under Article I, section 12, namely, whether in 

determining if a suspect in police custody has unequivocally 

invoked his or her right against self-incrimination, a court 

can consider a suspect’s post-request responses to further 

police questions.

This court must independently analyze the meaning, scope, and requirements of Article I, section 12, just 

like any other provision of the Oregon Constitution. See, e.g., 

State v. Caraher, 293 Or 741, 748, 653 P2d 942 (1982) (stating principle). When construing a provision of the original 

Oregon Constitution (and Article I, section 12, is such a provision), we examine the text in its context, the historical 

circumstances of the adoption of the provision, and the case 

law that has construed it. Priest v. Pearce, 314 Or 411, 415–

16, 840 P2d 65 (1992). Insofar as the issue at hand is concerned, the text in context and historical circumstances of 

the adoption of Article I, section 12, do not assist our analysis. However, our previous decisions construing Article I, 

section 12, do provide some guidance.

In State v. Smith, 310 Or 1, 791 P2d 836 (1990), the 

defendant argued that he had invoked his rights against 

self-incrimination under Article I, section 12, and under the 

Fifth Amendment, when, during a police interview, he said, 

“I have nothing to say” in response to a detective’s hypothetical description of how he might have killed his wife. 

Based on the context in which the remark was made, the 

trial court concluded that the defendant had not invoked 

his right against self-incrimination, but, instead, merely 

had exercised his right to answer some questions and not 

to answer others. See Kell, 303 Or at 99 (“Defendant was 

entitled to pick and choose what he wished to talk about.”). 

This court agreed with the trial court’s conclusion, because 

it found “‘nothing which suggests that detectives persisted 

in repeated efforts to wear down [the defendant’s] resistance and make him change his mind.’” Smith, 310 Or at 

10 (quoting State v. Foster, 288 Or 649, 656, 607 P2d 173 
Cite as 356 Or 600 (2014) 611

(1980)).5

 In so concluding, the court analyzed the defendant’s 

words in the context in which they were uttered, including 

the preceding circumstances.

Later, in Charboneau, a case involving the asserted 

invocation of the right to counsel under Article I, section 12,6

the defendant sought to exclude inculpatory statements that 

he made after he asked, “Will I have an opportunity to call 

an attorney tonight?” 323 Or at 52. This court concluded 

that any request for counsel was equivocal:

“In the totality of the circumstances, defendant’s question 

simply does not constitute, as a matter of law, an unequivocal request for a lawyer. For example: (1) Defendant did 

not say that he wished to speak with a lawyer at the time; 

rather, he asked about the future. (2) Even regarding the 

future, defendant’s statement did not say that he necessarily would want to speak with a lawyer; he asked only if he 

would have an opportunity to speak with a lawyer later. 

Although no single characteristic is controlling, defendant’s 

statement, when considered in its entirety, readily suggests 

that he was not invoking his right to speak to a lawyer at 

that time but might do so later.”

Id. at 55 (emphases added). Thus, like in Smith, the court in 

Charboneau analyzed the defendant’s words in the context 

in which they were uttered, this time expressly considering 

“the totality of circumstances.”

Most recently, in McAnulty, we held that the defendant twice had invoked her right to remain silent when she 

“unambiguously communicated that she no longer desired 

to talk with detectives.” 356 Or at 456. We also concluded, 

based on the context of her preceding interactions with the 

officers, that the defendant later invoked that right a third 

time by stating, “I don’t want to no more, please, I don’t want 

to.” Id. at 452. The state had maintained that the defendant, 

5 The court did not engage in a separate analysis of each constitutional provision but, rather, applied the same reasoning to both Article I, section 12, and the 

Fifth Amendment.

6 The right to counsel derives from two separate provisions in the Oregon 

Constitution—Article I, section 11, and Article I, section 12. The right to counsel 

recognized by Article I, section 12, is an adjunct to a defendant’s state constitutional Miranda right. See State v. Haynes, 288 Or 59, 71, 602 P2d 272 (1979) 

(describing Article I, section 12, right to counsel as a “derivative right” to protect 

against involuntary confessions).
612 State v. Avila-Nava

in her third invocation, merely had expressed a desire not 

to look at a photograph of the murder victim. We disagreed. 

We noted that, before the defendant’s invocation, one of the 

officers had acknowledged that he was aware that the defendant did not want to look at anything and assured the defendant that he was “not going to ask [her] to do that.” Id. He 

instead told the defendant that he still needed to ask her 

about the victim’s injuries. When the defendant then stated, 

“I don’t want to no more, please, I don’t want to,” we concluded—based on her words in light of the preceding circumstances—that she “effectively communicated her intent 

to stop the conversation.” Id. at 456.

The foregoing decisions, although not expressly 

applying it, are consistent with the standard that, in determining whether an unequivocal invocation of the right 

against self-incrimination was made, a court considers the 

defendant’s words, in light of the totality of the circumstances 

at and preceding the time they were uttered, to ascertain 

whether a reasonable officer would have understood that 

the defendant was invoking that right. That is the standard 

that the United States Supreme Court has adopted under 

the Fifth Amendment. Davis, 512 US at 458-59. Under that 

standard, “[e]vents preceding the [response]” or “nuances 

inherent in the [response] itself” can evince ambiguity and 

justify the conclusion that an accused’s response was equivocal. Smith v. Illinois, 469 US 91, 100, 105 S Ct 490, 495, 

83 L Ed 2d 488 (1984). However, “an accused’s post request 

responses to further interrogation may not be used to cast 

retrospective doubt on the clarity of the initial request itself.” 

Id.

7

7 Some courts applying the Fifth Amendment also have concluded that a 

suspect failed to unequivocally invoke the right against self-incrimination when 

what might otherwise be deemed to be an unequivocal invocation was immediately and spontaneously followed by words that were inconsistent with a desire 

to remain silent. Thus, for example, courts have concluded that no unequivocal 

invocation was made when words expressing a desire to end questioning were 

“separated by little more than a breath” from subsequent utterances that would 

lead a reasonable officer to doubt whether the defendant in fact wished to do 

so. State v. Rogers, 277 Neb 37, 67, 760 NW 2d 35 (2009); see also, e.g., U.S. v. 

Stepherson, 152 Fed Appx 904 (11th Cir 2005); State v. Whipple, 134 Idaho 498, 5 

P3d 478 (2000); Haviland v. State, 677 NE2d 509 (Ind 1997). The state does not 

assert that that principle applies to the factual circumstances of this case and, 

therefore, we do not consider that issue.
Cite as 356 Or 600 (2014) 613

That standard also comports with the demands of 

Article I, section 12. Whether or not custodial interrogation 

is actually abusive, this court has recognized that the setting in which it occurs is inherently coercive. Sparklin, 296 

Or at 89. As then-Judge Gillette succinctly explained:

“A person who is in custody is not the master of the situation; the police are. Article I, section 12, provides a way 

for a suspect to assert some control over the situation so 

that whatever he does will be the result of a knowing and 

voluntary choice.”

State v. Rowe, 79 Or App 801, 805, 720 P2d 765, rev den,

302 Or 86 (1986). Where an officer reasonably would understand that a suspect in police custody has unequivocally 

invoked his or her right against self-incrimination, further 

questioning to confirm that the suspect actually meant to 

invoke that right—whether by design or not—can erode the 

suspect’s will. To ensure respect for a suspect’s choice, the 

rule prohibiting the further questioning of a suspect who 

has invoked the right against self-incrimination therefore 

should be applied from the perspective of the police officer 

who must follow it at the time the officer is to follow it. See 

State v. Smith, 301 Or 681, 713, 725 P2d 894 (1986) (Linde, 

J., dissenting). That standard has the further advantages 

of reducing “difficulties of proof and [providing] guidance to 

officers conducting interrogations.” Davis, 512 US at 458-

59. Thus, we conclude that, in determining whether a defendant’s words constituted an unequivocal invocation of the 

right against self-incrimination under Article I, section 12, 

a reviewing court must consider those words, in the context 

of the totality of circumstances existing at the time of and 

preceding their utterance, to determine whether a reasonable officer would have understood that the defendant was 

invoking that right.8

8 The concurrence is less certain that Article I, section 12, compels the conclusion that we reach, although it recognizes that a contrary conclusion would 

run afoul of the Fifth Amendment under the Supreme Court’s decision in Smith. 

356 Or at 621 (Kistler, J., concurring). For its part, the state does not appear to 

argue that Article I, section 12, permits the consideration of post-request circumstances. Rather, the state asserts that, under Article I, section 12, a “determination of a reasonable officer’s understanding of a suspect’s spoken words, under the 

totality of the circumstances, must include context.” In support of that argument, 

the state relies in part on Medina v. Singletary, 59 F3d 1095, 1104 (11th Cir 1995), 

cert den, 517 US 1247 (1996), where, as the state notes, the court “recognize[ed] 
614 State v. Avila-Nava

The parties agree that, to determine whether that 

standard is met, a court may consider the preceding words 

spoken by the defendant and the interrogating officer, the 

demeanor, gestures, and speech patterns of the defendant, 

the demeanor and tone of the interrogating officer, and the 

point at which the defendant allegedly invoked the right to 

remain silent. Courts applying the Fifth Amendment have 

considered such contextual indicia,9

 and we agree that such 

indicia also are appropriate considerations in evaluating 

whether a defendant’s words amounted to an unequivocal 

invocation of the right against self-incrimination under 

Article I, section 12.

With the foregoing principles in mind, we turn to 

the circumstances of this case.

APPLICATION

The parties agree that, based on their ordinary 

meaning, defendant’s words “I won’t answer any questions,” appeared unequivocally to invoke his right against 

self-incrimination. However, they disagree about what, in 

context, a reasonable officer would have understood those 

words to communicate. As noted, the trial court found as 

fact that defendant’s words were “posed” as a “quandary” 

and that “defendant didn’t quite understand what was going 

on at the time.”10 Based on that finding, the court reached 

the legal conclusion that defendant did not unequivocally 

invoke his right against self-incrimination. The ultimate 

question before us is whether evidence in the record preceding the apparent invocation supported that finding of fact 

and legal conclusion. James, 339 Or at 481.

The state makes three arguments in defense of the 

trial court’s finding of fact and its resulting legal conclusion: 

the importance of ‘events preceding the [response]’ or ‘nuances inherent in the 

[response] itself.’” (Emphasis added).

9 See, e.g., Rogers, 277 Neb at 64-5; People v. Arroya, 988 P2d 1124 (Colo 

1999); People v. Glover, 661 NE2d 155-56 (NY 1995).

10 The word “quandary” can refer either to a “state of perplexity or doubt” or 

a “dilemma.” See Webster’s Third New Int’l Dictionary 1859 (unabridged ed 2002). 

It is not altogether clear from the trial court’s ruling whether it meant to find 

that defendant was unsure about whether to invoke his right to remain silent or, 

as the court suggested in its next comment, that defendant was confused about 

his rights, or both. However, as explained below, any uncertainty as to the trial 

court’s meaning does not ultimately affect our conclusion.
Cite as 356 Or 600 (2014) 615

(1) the finding was supported by Ganete’s testimony that he 

interpreted defendant’s words as a question; (2) evidence 

of a language barrier between Ganete and defendant also 

supported the finding; and (3) the finding was supported 

by evidence that defendant either was confused about the 

warning that anything he said could be used against him or 

was uncertain whether to invoke his right to remain silent. 

We address those arguments in order.

First, the state asserts that the trial court’s finding 

of fact was supported by Detective Ganete’s testimony that 

he “interpreted [defendant’s words] as a question that [defendant] was pondering from lack of understanding.” The state 

posits that Ganete “genuinely perceived defendant’s words 

as a question, presumably due to defendant’s intonation and 

demeanor, which [Ganete] may well have mimicked for the 

trial court when repeating them in his testimony.” There are 

two difficulties with that argument. First, there was no evidence in the record that defendant’s demeanor, gestures, or 

tone of voice indicated to Ganete that defendant had posed 

a question.11 Second—and in any event—the record shows 

that Ganete’s interpretation of defendant’s words was not 

based on defendant’s demeanor, gestures, or intonation in 

uttering them, but, instead, was based on the substance of 

their conversation. When the trial court asked Ganete why, 

in light of defendant’s “pretty unequivocal” words, Ganete 

“continue[d],” Ganete’s reply was straightforward:

“Because I asked at one point ‘are you saying you don’t want 

to talk to me at all? You just want me to go away?’ And his 

expression was, ‘no I can’t talk to you if I don’t understand 

11 The state suggests that the transcriptionist who prepared the trial court 

record in this case erroneously punctuated defendant’s words so that they 

appeared to be declarative, not interrogative. We reject that assertion. Neither 

party attempted to correct the record on appeal in accordance with the applicable 

procedure. As such, its contents bind us on review. The record on appeal includes 

“the record of oral proceedings,” which “shall be a transcript.” ORAP 3.05(1), (2). 

See ORAP 9.20(5) (“The record on review shall consist of the record before the 

Court of Appeals.”). The circuit court determines the accuracy of the transcript, 

not the parties on appeal or this court. See State v. Acremant, 338 Or 302, 337, 

108 P3d 1139 (2005) (“‘It is elementary that it is the circuit court, not this court, 

which determines the correctness of the transcript which comes to this court on 

an appeal.’” (quoting Fry v. Ashley, 228 Or 61, 71, 363 P2d 555 (1961)). Although 

parties to an appeal may challenge the accuracy of a transcript and either correct 

or supplement the record, see ORS 19.365(4); ORS 19.370(6); ORAP 3.40, the 

state has not done so in this case.
616 State v. Avila-Nava

what this right means because you’re telling me I have the 

right to remain silent. I don’t understand what this means.’

“So, your honor, I guess to clarify this, I—my understanding is that he wasn’t understanding that right, and I 

made every effort to explain to him what that meant and 

this was our going back and forth until he finally said, ‘Oh, 

I see what you’re telling me. Okay. Under that condition, 

then I want to talk to you. I understand what that right 

means.”

The problem is that, in chronological sequence, the 

verbal exchange on which Ganete relied took place after

defendant said “I won’t answer any questions,” and after

Ganete had moved on to a discussion of other rights, not 

before. Because Ganete’s answer to the trial court’s question 

was based on what transpired after defendant said “I won’t 

answer any questions” and after Ganete nevertheless had 

continued the interview, the described exchange could not 

have informed Ganete’s understanding of defendant’s words 

when he uttered them.

Second, as noted, the state asserts that a “language 

barrier” between Ganete and defendant was an additional 

circumstance that supported the trial court’s finding. It is 

true that the trial court referred to a language barrier in 

making its ruling. However, the only evidence in the record 

was that no such barrier existed. As discussed, Ganete testified that he and defendant were able to understand each 

other in Spanish, the language in which they conversed. 

Accordingly, that argument does not assist the state either.

Third, the state observes that, before defendant 

said “I won’t answer any more questions,” he appeared not 

to understand “the warning that anything he said could be 

used against him.” The state argues that “[d]efendant had 

already expressed confusion regarding that warning and his 

question was the latest in a series of inquiries or statements 

seeking further clarification,” and “[i]n that context, a reasonable officer could not have been certain whether defendant was continuing to seek clarification or whether he was 

switching gears and now invoking a right.” We disagree.

The state is correct that the warning that “[a]nything you say may be used against you in a court of law,” 
Cite as 356 Or 600 (2014) 617

appeared to confuse defendant. And, it is true that that 

warning does refer to a consequence of a suspect’s waiver 

of the right against self-incrimination. However, the warning and the right to remain silent were stated to defendant 

separately. Before he said “I won’t answer any questions,” 

defendant did not express any confusion about his right to 

remain silent. In fact, in light of the preceding conversation 

between defendant and Ganete, defendant’s words indicated 

that he understood exactly what that right meant.12 Thus, 

viewed in its proper context, defendant’s apparent confusion 

about the meaning of the warning that his statements could 

be used against him could not reasonably be understood to 

cast doubt on the ordinary import of his declaration, “I won’t 

answer any questions.” See Barrett, 479 US at 529; Kell, 303 

Or at 99 (“interpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous”).

Moreover, to the extent that the trial court’s finding 

that defendant “posed” a “quandary” was meant to indicate 

that defendant was uncertain about whether to invoke his 

right against self-incrimination, that finding was based on 

a similarly speculative—and equally impermissible—inference. That is, assuming that a reasonable officer would have 

understood that defendant was confused about the meaning 

of the warning that anything he said could be used against 

him, that confusion should not have been understood to indicate that, when defendant said “I won’t answer any questions,” he was uncertain about whether to invoke his right 

to remain silent. There was nothing in those words or the 

context in which they were spoken indicating that defendant 

was uncertain about whether to exercise that right, even 

though Ganete may have believed that, with further clarification of the warning, defendant might change his mind.

Of course, if defendant subsequently had reopened 

the dialogue with the officers by making unprompted 

statements that indicated a willingness to have a generalized discussion about the investigation, they could have 

12 As discussed, defendant previously had asked Ganete whether he “ha[d] to 

answer [his] questions,” and Ganete had responded that defendant “did not have 

to answer any questions or talk to me if he chose to.”
618 State v. Avila-Nava

proceeded with further questioning. McAnulty, 356 Or at 

456-57. Likewise, if the officers had reinitiated the conversation after waiting a reasonable length of time, given 

defendant new Miranda warnings, and defendant had indicated willingness to talk about the investigation, further 

questioning also would have been permissible. Id. at 458. In 

the meantime, however, the officers were required to take 

defendant at his word and cease questioning him. Sparklin, 

296 Or at 89.

To recapitulate: Defendant’s words “I won’t 

answer any questions” appeared on their face unequivocally to invoke his right against self-incrimination. As 

discussed, the objective meaning of those words must be 

considered in the totality of circumstances at and preceding the time they were uttered, not based on evidence 

that occurred after defendant invoked his right to remain 

silent. Thus, the trial court erred in basing its conclusion 

on evidence that occurred after defendant invoked that 

right.

Here, there was no evidence in the record to support the state’s argument that a reasonable officer would 

have understood defendant’s words as a question when they 

were uttered. Nor was there evidence of a language barrier between defendant and the officer. Finally, there was 

no evidence that defendant’s words posed a “quandary,” in 

that they conveyed either confusion about the meaning of 

his right against self-incrimination or uncertainty about 

whether to invoke that right. Accordingly, there was no evidence preceding or contemporaneous with the invocation to 

support the trial court’s conclusion that defendant failed to 

unequivocally invoke his right to remain silent. Because the 

officer continued to question defendant after his unequivocal invocation and that constitutionally precluded questioning led to defendant’s challenged statements, those statements should have been suppressed for a violation of his 

right against self-incrimination.

The decision of the Court of Appeals is affirmed. 

The judgment of the circuit court is reversed, and the case 

is remanded to the circuit court for further proceedings.
Cite as 356 Or 600 (2014) 619

KISTLER, J., concurring in part and concurring 

in the judgment.

This case arises out of an officer’s efforts to ensure 

that defendant understood his Miranda rights. Midway 

through a colloquy concerning those rights, defendant 

expressed uncertainty about what the admonition—that 

anything he said could be used against him—meant. The 

officer repeated the admonition, and defendant stated, “I 

won’t answer any questions.” The trial court recognized that 

defendant’s statement, viewed in isolation, appeared to be 

an unambiguous invocation of his right to remain silent. The 

trial court found, however, that, viewed in context, defendant’s invocation was ambiguous and that, in responding 

to it, the officer only sought to clarify defendant’s Miranda 

rights. Considering the entirety of the officer’s colloquy with 

defendant, the trial court found that defendant had not 

invoked his right to remain silent.

The majority reaches a different conclusion. In 

doing so, it does not question the conclusion the trial court 

reached; that is, the majority does not disagree that, if we 

considered the entirety of the officer’s colloquy with defendant, the trial court correctly concluded that defendant had 

not invoked his right to remain silent. Rather, the majority 

holds that, in determining whether defendant invoked his 

right to remain silent, a court may consider only the evidence 

that preceded or was contemporaneous with that invocation. 

Looking solely at that evidence, the majority concludes that 

only one conclusion is permissible: Defendant’s initial statement was an unambiguous invocation of his right to remain 

silent, and the statements that followed must be suppressed. 

The majority accordingly reverses the trial court’s judgment 

and remands for further proceedings.

I concur in the majority’s judgment, but my reasons 

for doing so differ in part from the ones that the majority 

gives. If the first issue that the majority decides were an 

open question, it might deserve more discussion than the 

majority gives it. As this case illustrates, the bright-line rule 

that the majority announces can result in suppressing a suspect’s statements when the officer merely sought to ensure 

that the suspect understood his rights and did nothing to 
620 State v. Avila-Nava

impair the suspect’s assertion of them.1

 However, the majority’s rule has a legitimate prophylactic effect. It helps ensure 

that officers will not badger or cajole suspects who invoke 

their Miranda rights, and it avoids potentially difficult post 

hoc inquiries into whether the officer’s clarifying questions 

went too far.

Were this an open issue, I might reach a different 

conclusion from the majority. After all, we frequently ask 

officers to make difficult, fact-specific judgment calls, and a 

rationale that the majority offers for the state constitutional 

rule that it announces—that officers need rules—rests on a 

premise that is inconsistent with that experience and begs 

the question of what the rule should be. Whatever the merit 

of that debate, however, the United States Supreme Court’s 

decision in Smith v. Illinois, 469 US 91, 105 S Ct 490, 83 L Ed

2d 488 (1984), effectively forecloses it. In that case, the 

Court held that, under the Fifth Amendment, only evidence 

that precedes or is contemporaneous with a suspect’s invocation of a Miranda right may be considered in determining 

whether the invocation was unambiguous. Id. at 100.2

1 That was the situation in Smith v. Illinois, 469 US 91, 105 S Ct 490, 83 L Ed

2d 488 (1984), and it resulted in a divided Court for precisely that reason. In considering that issue, Justice Rehnquist’s dissenting opinion reasoned:

“The Court asserts that subsequent statements cannot be used to call 

into question the clarity of an earlier ‘request’ for counsel. It may be that 

a crystal-clear statement could not be rendered ambiguous by subsequent 

responses to questions seeking clarification. But statements are rarely that 

clear; differences between certainty and hesitancy may well turn on the 

inflection with which words are spoken, especially where, as here, a seven-word statement is isolated from the statements surrounding it. But in the 

ordinary give-and-take of statement and response in a colloquy such as this, 

I see no reason why the entire flavor of the colloquy—lasting less than five 

minutes—cannot be considered by the trier of fact.”

469 US at 101 (Rehnquist, J., dissenting).

2 The officer in Smith advised the defendant of each Miranda right and then 

asked if he understood that right. 469 US at 92-93. Midway through that process 

and after being advised of his right to a lawyer, the defendant said, “Uh, yeah. I’d 

like to do that.” Id. at 93. The officer continued by advising the defendant that, 

if he wanted a lawyer and could not pay for one, a lawyer would be provided free 

of cost, to which the defendant replied, “Okay.” The officer then asked whether, 

knowing those rights, the defendant “wish[ed] to talk to [him] at this time without a lawyer being present.” Id. The defendant responded, “Yeah and no, uh, I 

don’t know what’s what really.” Id. The Court held that only the evidence that 

preceded the defendant’s response, “Uh, yeah. I’d like to do that,” could be considered in determining whether that response was an unambiguous invocation of 
Cite as 356 Or 600 (2014) 621

To be sure, defendant does not raise a Fifth 

Amendment claim in this case. He invokes only his rights 

under Article I, section 12, of the Oregon Constitution, and 

we are free to adopt a less stringent standard under the state 

constitution than the Fifth Amendment rule that the Court 

announced in Smith. There would be little point, however, in 

announcing a state constitutional rule that permits Oregon 

courts to consider evidence that the Fifth Amendment precludes them from considering. For that reason, I agree with 

the majority that, in determining whether defendant’s invocation was unambiguous, the trial court could consider only 

evidence that preceded or was contemporaneous with the 

invocation.

The remaining question is whether the evidence 

that preceded defendant’s invocation permitted the trial 

court to find his invocation ambiguous. In analyzing that 

issue, the majority correctly recognizes that the question 

whether defendant’s invocation, viewed objectively, was 

ambiguous can turn on, among other things, his tone of 

voice, the inflection of his words, any gestures that preceded or accompanied the invocation, and the tenor of the 

conversation that preceded the invocation. The majority 

also correctly recognizes that those clues to the meaning 

of defendant’s words are, in the first instance, questions of 

historical fact for the trial court. Having correctly recognized the fact-bound nature of the meaning of a person’s 

statements, the majority also correctly recognizes that the 

record in this case is not sufficient to support the conclusion 

that the trial court reached.

In this case, the state’s argument that defendant’s 

invocation was ambiguous rests on (1) the officer’s opinion, 

which he stated at the suppression hearing, that defendant’s invocation was more in the nature of “a question that 

he was pondering to me from lack of understanding” and 

(2) the uncertainty that defendant previously had expressed 

regarding Miranda rights generally and, more specifically, 

the meaning of the admonition that anything he said could 

be used against him.

the right to a lawyer. Id. at 100. Looking only at that evidence, the Court held the 

invocation unambiguous.
622 State v. Avila-Nava

In my view, the difficulty for the state lies in the 

apparent clarity of defendant’s statement, “I won’t answer 

any questions.” The statement, as the officer reported it, was 

unconditional. Moreover, the officer did not testify at the 

suppression hearing to any inflection in defendant’s words 

or any quality in the tone of his voice that caused the officer 

to conclude that defendant was posing a question to him. 

Rather, the officer testified that he based his opinion that 

defendant was posing a question to him on defendant’s “lack 

of understanding.” And, under Smith, the only relevant evidence of defendant’s lack of understanding consists of two 

questions that defendant had asked the officer before defendant said, “I won’t answer any questions.” As the majority 

explains, neither question undercuts the significance of the 

words that defendant used.

Defendant posed the first question immediately 

after the officer read defendant his Miranda rights and 

asked whether he understood them. Defendant responded, 

“I have a question. Do I have to answer your questions?” 

The officer told him that he “did not have to answer any 

questions or talk to [the officer] if he chose [not] to [do so].” 

And defendant explained that he understood. Defendant’s 

first question provides no support for the officer’s opinion. 

If anything, defendant’s question and the officer’s answer 

imply that defendant’s subsequent invocation was unambiguous; that is, defendant chose to exercise the right to remain 

silent, which the officer had told him he had.

The second question occurred when the officer was 

going over each of the Miranda rights individually. The 

officer told defendant that “anything you say may be used 

against you in a court of law,” and defendant stated, “I don’t 

understand what this means.” When asked what he did not 

understand, defendant replied, “Anything I say can be used 

against me.” The officer responded, “That’s correct. Anything 

you say can be used against you.” At that point, defendant 

stated, “I won’t answer any questions.” Defendant’s statement appears to be a non sequitur. It is not apparent, however, why defendant’s uncertainty about the extent to which 

his statements could be used against him converts his 

apparent invocation of his right to remain silent into a question. If anything, defendant’s uncertainty suggests that he 
Cite as 356 Or 600 (2014) 623

may have been concerned that his answers—whether exculpatory or inculpatory—could be used against him and, as a 

result, simply chose not to “answer any questions.”

Frequently, what a person means will depend on a 

myriad of contextual clues, and a trial court’s explicit and 

implicit factual findings regarding those clues will effectively resolve the question whether a particular invocation 

was ambiguous. In this case, however, the trial court based 

its conclusion that defendant’s invocation was ambiguous on 

evidence that occurred after he invoked, and the evidence 

that preceded defendant’s invocation is not sufficient to 

support a finding that defendant’s words meant something 

other than what they said. In those circumstances, I agree 

with the majority’s conclusion that defendant’s invocation 

of the right to remain silent was unambiguous and foreclosed the state from using defendant’s subsequent answers. 

Accordingly, I concur in part and concur in the judgment.

Linder, J., joins this opinion concurring in part and 

concurring in the judgment.