302 September 22, 2016 No. 59

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ROBERT DARNELL BOYD,

Petitioner on Review.

(CC 201026332; CA A151157; SC S063260)

On review from the Court of Appeals.*

Argued and submitted January 12, 2016.

Laura A. Frikert, Deputy Public Defender, Salem, argued 

the cause and filed the brief for petitioner on review. With 

her on the brief was Ernest G. Lannet, Chief Defender, Office 

of Public Defense Services.

Rebecca M. Auten, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on review. 

With her on the brief were Ellen F. Rosenblum, Attorney 

General, and Paul L. Smith, Deputy Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, and Brewer, Justices, and Garrett, Justice 

pro tempore.**

LANDAU, J.

The decision of the Court of Appeals is reversed. The 

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

remanded to the circuit court for further proceedings.

______________

** Appeal from Lane County Circuit Court, Lauren S. Holland, Judge. 270 

Or App 41, 346 P3d 626 (2015).

** Nakamoto, J., did not participate in the consideration or decision of this 

case.
Cite as 360 Or 302 (2016) 303

Case Summary: Upon defendant’s arrest on suspicion of having beaten his 

girlfriend to death, a police detective attempted to question him. Defendant 

claimed to have no memory of the events leading up to his arrest and seemed not 

to believe the detective when he told him that his girlfriend was dead and that 

he was under arrest for her murder. When defendant told the detective he did not 

wish to be questioned without a lawyer present, the detective ended the interview and had defendant placed in a holding cell. Hours later, defendant asked 

a different police officer why he was in jail and stated that he needed to call his 

“baby girl.” The police officer’s responses—asking defendant whether his “baby 

girl” was his girlfriend and if he “didn’t remember” being told why he was in jail, 

and then telling defendant that he had been arrested for killing his girlfriend—

caused defendant to become agitated and to ask to speak to the police detective 

who had attempted to interrogate him the night before. The detective was called 

in and interviewed defendant about the circumstances surrounding the girlfriend’s death. Prior to his trial for murdering the girlfriend, defendant moved to 

suppress his statements during that interview on the ground that the police officer’s responses to his question about why he was there amounted to reinitiation of 

interrogation which, because defendant had previously invoked his right to counsel, was prohibited under the Fifth Amendment to the United States Constitution 

and Article I, section 12, of the Oregon Constitution. The trial court denied the 

motion to suppress and, on defendant’s appeal from his subsequent conviction, 

the Court of Appeals affirmed. Held: Because the police officer’s questions and 

comments to defendant were reasonably likely to elicit some type of incriminating response from him, they constituted custodial interrogation, which, given 

that defendant had invoked his right to counsel, was prohibited under Article I, 

section 12, of the Oregon Constitution.

The judgment of the circuit court and the decision of the Court of Appeals 

are reversed. The case is remanded to the circuit court for further proceedings.
304 State v. Boyd

LANDAU, J.

The issue in this case is whether police unlawfully 

interrogated a criminal defendant after he invoked his rights 

to counsel and against compelled self-incrimination, guaranteed by Article I, section 12, of the Oregon Constitution 

and the Fifth Amendment to the United States Constitution. 

The state argues that defendant had asked a “confusing” 

question and that police responded by seeking “clarification,” which did not amount to unconstitutional interrogation. Defendant argues that he had merely asked why he had 

been taken into custody and whether he could make a phone 

call, that there was nothing particularly confusing about 

the requests, and that police responded with questions that 

were reasonably likely to—and in fact did—elicit incriminating evidence. As a result, he contends, that incriminating evidence should have been suppressed. The trial court 

agreed with the state and denied defendant’s motion to suppress. The Court of Appeals affirmed. State v. Boyd, 270 Or 

App 41, 346 P3d 626 (2015). For the reasons that follow, we 

conclude that defendant is correct that the police unconstitutionally interrogated him, in violation of Article I, section 

12.

The relevant facts are not in dispute. Defendant’s 

girlfriend, Archibald, was found dead on the street, the victim of a severe beating. Witnesses saw her on the ground 

and saw defendant running away from the scene. A few minutes later, police arrested defendant, who had Archibald’s 

blood on his hands, shoes, and pants. The arresting officers 

advised defendant of his constitutional rights and questioned him. Defendant told the police that he was not sure 

what happened. He saw that his hand was bleeding and 

“figured” that he had been in a fight or had punched a car 

window. He said that he recalled that Archibald had become 

angry with him because she thought he had pushed her and 

that she had hit him several times. But he denied hitting 

her, insisting that he would never hit a woman. He repeatedly asked about Archibald’s welfare.

The officers took defendant to the police station. 

There, Detective Myers questioned him while Sergeant 

Lewis observed. Defendant again said that he could not 
Cite as 360 Or 302 (2016) 305

remember what had happened and that, given the injury 

to his hand, he must have “either punched somebody’s car 

or punched somebody.” He said that he knew that he “was 

pissed off, because I was arguing with my girl.” He then 

stated that “I don’t know why I’m here, so—please don’t talk 

to me anymore on that aspect until you bring me a lawyer.”

Myers told defendant to change into jail clothes. 

As defendant did that, he asked Myers why he had been 

arrested. Myers told him that Archibald was dead and that 

he was being arrested for her murder. Defendant became 

agitated, expressing disbelief:

“A: Whoa, whoa, whoa, what the fuck you mean, my 

girlfriend is dead, man?

“Q: She’s dead.

“A: No, no, no, no—Ally’s at home.

“Q: Change your clothes. Let’s go.

“A: Ally’s at home.

“Q: Have a seat and change your clothes. That’s all 

you’ve got to do. Relax and change your clothes.

“A: What you mean, my girlfriend’s dead, man? That’s 

not, no, no, no, we just had an argument. I left her—my 

girl ain’t dead. My girl is drunk at home with the baby. I 

don’t—fuck what y’all is saying, and why the fuck are all of 

you mother-fuckers gathering up on me?

“Q: We are not gathering up on you. We’d just like you 

to change your clothes, sit down and we’ll get through the 

process.

“A: All right, but my girl ain’t dead. My baby is at 

home, peaceful. No, I refuse to even entertain that thought. 

Fuck you, you can kiss my ass. My baby’s at home with the 

baby. She’s at home where she ought to. No, hell no, fuck 

you, you can kiss my ass. No, my baby is fine. I don’t give a 

fuck what y’all—my baby is at home with Elija. I wouldn’t 

give a fuck what y’all talking about. Fuck that shit.

“Q: You want to slide your pants over here?

“A: Man, listen. Fuck that, my baby ain’t dead. My 

baby is at home with the baby. [inaudible] No, no, no—
306 State v. Boyd

“Q: You just sit here until officers come to take possession of your things. Can someone transport him? Put 

your hands behind your back. I’ll try hard not to [inaudible] them too hard. I know you got a bum finger.

“A: I’m not about to fight you because my baby ain’t 

dead [inaudible] I don’t know what the fuck happened 

tonight, but my baby ain’t dead.”

Lewis observed the foregoing interchange between defendant and Myers.

About seven hours later, Lewis learned that defendant had been transferred to a holding cell with a sink 

and running water. Concerned that defendant could have 

washed his hands and destroyed potential evidence, he 

went to defendant’s cell. He checked defendant’s hands and, 

apparently satisfied that defendant had not washed them, 

turned to leave. Defendant spoke to Lewis, asking, “Is anybody going to tell me why I’m here? I need to call my baby 

girl because she’s going to wonder where I’m at.” As Lewis 

later recalled in testimony at a suppression hearing, the following exchange then occurred:

“A: I asked him if he didn’t remember Detective Myers 

telling him why he was here, and he replied, ‘no, I don’t 

remember nothing about that or talking to nobody.’

“Q: Then what?

“A: I asked him, when he was talking about his baby 

girl, if he was referring to *** Archibald and he said that 

he was, and then I just told him that I was present when 

Detective Myers told him that she was dead and he was 

under arrest for killing her, and he got real agitated and 

started breathing heavy and clenching his fists and told 

me, ‘no, no, she ain’t dead, you’re lying’ and then he tells 

me ‘I want to talk to the detective that you said I talked 

to.’”

Lewis went to get Myers, who arrived at defendant’s 

holding cell within minutes. Once there, Myers reminded 

defendant that he had earlier asked to speak with a lawyer and asked him if he still wanted one. Defendant said 

that he did not want a lawyer but wanted to talk to Myers 

about what had happened. Myers advised defendant of his 

Miranda rights and again asked if defendant wished to 
Cite as 360 Or 302 (2016) 307

speak to him without a lawyer present. Defendant said, yes. 

In the ensuing interview, defendant described an altercation 

with Archibald during which she had hit him repeatedly, 

making him angry so that “he felt like bashing her fucking 

head.” He recalled that he had pinned Archibald against a 

van and then hit her once, causing her to fall and hit her 

head on the ground. Defendant asserted that, after hitting 

Archibald, he had “blacked out and just took off walking.” 

When Myers told defendant that Archibald’s injuries were 

inconsistent with a single punch, defendant requested an 

attorney, and the interview ended.

The state charged defendant with Archibald’s murder. Before trial, defendant moved to suppress his statements to Myers, arguing that they were obtained in violation of his right against compelled self-incrimination under 

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

Fifth Amendment to the United States Constitution. He 

argued that the police had “either circumvented or coerced” 

him into making those statements in spite of his explicit 

invocation of his right to speak to an attorney. The trial 

court denied the motion, holding that defendant had knowingly and voluntarily waived his right to counsel. The trial 

court explained that the interview with Myers had occurred 

“only upon defendant’s request to have further contact with 

*** Myers” and only after Myers readministered Miranda

warnings.

During the trial to the court, the state introduced 

evidence of defendant’s statements to Myers, in particular, 

defendant’s statement about being angry with Archibald 

and that he “felt like bashing her fucking head.” Defendant 

did not dispute that he had killed Archibald. His defense 

was that he lacked the requisite culpable mental state. 

In support of that defense, he took the stand and testified 

that he had never intended to hurt Archibald, that he had 

been unaware of punching her at the time, and that he did 

not remember doing so after the fact. In rebuttal, the state 

presented the testimony of a psychological expert who had 

relied in part on defendant’s statements to Myers to reach 

his conclusion that defendant was malingering. The trial 

court convicted defendant of murder, ORS 163.115, and sentenced him to imprisonment for life.
308 State v. Boyd

On appeal, defendant argued that the trial court 

erred in denying his motion to suppress his statements to 

Myers after he invoked his right to counsel, and that the 

error was prejudicial. He also asserted an unpreserved 

argument that the trial court should have suppressed the 

statements that he made to the police before he invoked his 

right to counsel, on the ground that the advice of his rights 

when he initially was contacted by the police was defective.

The Court of Appeals affirmed. The court concluded 

that, because Lewis’s responses to defendant’s questions 

were not of a sort that the officer should have known would 

be likely to produce an incriminating statement from defendant, it was not a reinitiation of interrogation. Boyd, 270 Or 

App at 47. The court explained that defendant himself had 

reinitiated interrogation, by “request[ing] to speak to Myers, 

indicating his desire for a generalized discussion about the 

investigation.” Id. at 48. The court concluded that, in light 

of Myers’s readministration of Miranda rights, the passage 

of time between defendant’s invocation and his profession of 

a wish to speak to Myers without a lawyer, and the absence 

of any evidence of mental impairment, the trial court had 

not erred in finding that defendant had knowingly and voluntarily waived his right to be questioned only in the presence of counsel. Id. Finally, the court rejected defendant’s 

unpreserved contention that the initial advice of rights was 

inadequate without discussion. Id. at 43.

On review before this court, defendant argues that 

he did not reinitiate interrogation; rather, he asked routine questions associated with being taken into custody. In 

defendant’s view, it was the police that reinitiated interrogation, when Lewis questioned him about his lack of memory about the earlier conversation concerning the assault 

on Archibald. Defendant asserts that, once he asserted his 

right to refrain from speaking with police without counsel 

present, police were prohibited by Article I, section 12, and 

the Fifth Amendment from asking any direct questions in 

the absence of a waiver of that right. At the least, defendant 

contends, police were forbidden to ask questions that were 

likely to elicit incriminating information. In this case, he 

argues, the questions that Lewis posed to him were likely 
Cite as 360 Or 302 (2016) 309

to do just that, given the fact that defendant already had 

denied remembering the assault. Defendant also reprises his 

unpreserved contention that, at all events, the initial advice 

of rights that he received was constitutionally inadequate.

The state argues that defendant is wrong in asserting that Article I, section 12, forecloses questioning of any 

sort once a defendant has invoked a right to counsel. In the 

state’s view, all that is prohibited is asking questions that 

are likely to elicit incriminating information from the defendant. In this case, the state contends, defendant’s questions 

about why he was in custody were “confusing,” given that 

defendant had been told several hours earlier why he had 

been arrested. In light of the confusing nature of defendant’s questions, the state argues, it was lawful for Lewis to 

ask “clarifying” questions that were not reasonably likely to 

elicit an incriminating response. In any event, the state contends, the incriminating information at issue—defendant’s 

statement that he intended to beat Archibald—derived from 

Myers’s questioning, not Lewis’s. And that occurred only 

after defendant expressly waived his constitutional rights 

and demanded to speak to the officer.

Defendant replies that, although he did demand to 

speak with Myers, that demand was a direct result of Lewis’s 

interrogation, before any waiver of constitutional rights.

At the outset, we reject without discussion defendant’s contention that the initial advice of rights was constitutionally inadequate. The parties’ remaining contentions are rooted both in Article I, section 12, of the Oregon 

Constitution and in the Fifth Amendment. We begin with 

defendant’s arguments under Article I, section 12. State v. 

Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court generally considers state law questions before reaching federal 

constitutional claims). But, because this court’s case law 

under that section of the state constitution has relied heavily 

on federal Fifth Amendment doctrine, we precede our state 

constitutional analysis with a brief summary of federal law 

to provide some context.

The Fifth Amendment to the United States 

Constitution provides that, “[n]o person shall *** be 
310 State v. Boyd

compelled in any criminal case to be a witness against himself.” In Edwards v. Arizona, 451 US 477, 484-85, 101 S Ct 

1880, 68 L Ed 2d 378 (1981), the United States Supreme 

Court held that, once a suspect invokes his or her Fifth 

Amendment rights, there can be no “further interrogation 

by the authorities until counsel has been made available 

** * unless the accused *** initiates further communication, exchanges, or conversations with the police.” Left undefined in Edwards were what the Court meant by an accused 

“initiat[ing]” further communication, as well as the nature 

of the “interrogation” that must cease until the accused does 

so.

The Court addressed the first issue in Oregon v. 

Bradshaw, 462 US 1039, 103 S Ct 2830, 77 L Ed 2d 405 

(1983). In that case, the defendant asked a police officer on 

the way to jail, “Well, what is going to happen to me now?” 

A plurality of the Court concluded that the defendant, in 

posing that question, had “initiated” further communication 

with the police for Fifth Amendment purposes. In reaching 

that conclusion, the Court distinguished the defendant’s 

questions from what it described as “routine inquiries”:

“There are some inquiries, such as a request for a drink of 

water or a request to use a telephone, that are so routine 

that they cannot be fairly said to represent a desire on the 

part of an accused to open a more generalized discussion 

relating directly or indirectly to the investigation. Such 

inquiries or statements, by either an accused or a police 

officer, relating to routine incidents of the custodial relationship, will not generally ‘initiate’ a conversation in the 

sense in which that word was used in Edwards.”

Id. at 1045. The four justices who dissented did not take 

issue with the plurality’s definition of what amounted to 

“initiating” a conversation; rather they disputed the plurality’s application of that test to the particular facts, concluding that the defendant’s question did not indicate a desire 

for a generalized discussion about the investigation. Id. at 

1055-56 (Marshall, J., dissenting).

The Court addressed the second issue in Rhode 

Island v. Innis, 446 US 291, 100 S Ct 1682, 64 L Ed 2d 297 

(1980). In that case, the defendant was arrested for murder 
Cite as 360 Or 302 (2016) 311

and advised of his Miranda rights, after which he asked 

to speak with a lawyer. On the way to the police station, 

two police officers who accompanied the defendant did not 

question him. They did talk among themselves, noting that 

(among other things) a child from a school for handicapped 

children near where the murder had occurred might find 

the gun with which the murder victim had been shot and 

accidentally shoot someone. Hearing the conversation, the 

defendant told the police to return to the scene of his arrest, 

so that he could show them where he had left the gun. Id. at 

293-95. Following the defendant’s arrest for the murder, he 

moved to suppress the gun and his statements to the police, 

on the ground that the evidence had been obtained in violation of his Fifth Amendment rights. The trial court denied 

the motion, but the Rhode Island Supreme Court reversed. 

Id. at 295-97.

The United States Supreme Court vacated the 

decision of the Rhode Island Supreme Court. A majority of 

the Court concluded that, for Fifth Amendment purposes, 

“interrogation” refers “not only to express questioning, but 

also to any words or actions on the part of the police *** 

that [they] should know are reasonably likely to elicit an 

incriminating response.” Id. at 301. That test, the majority 

said, “focuses primarily upon the perceptions of the suspect, 

rather than the intent of the police.” Id. Applying that test, 

the majority concluded that the police conversation was not 

of a sort that the officers should have known was likely to 

elicit an incriminating response. Id. at 303. The majority 

noted that there was no evidence that the officers knew that 

defendant was “peculiarly susceptible to an appeal to his 

conscience concerning the safety of handicapped children.” 

Id. Three justices dissented, two of whom agreed with the 

majority’s definition of what constituted “interrogation,” but 

disputed its application of the test to the facts of that case. 

Id. at 305-06 (Marshall, J., dissenting).

The Innis test was ambiguous, to say the least. 

In particular, it was not clear whether “interrogation” 

included any and all direct questioning on the part of 

police or only questioning that police should have known 

was likely to elicit an incriminating response. Portions of 
312 State v. Boyd

the Court’s opinion in Innis appeared to support either 

interpretation.1

In Pennsylvania v. Muniz, 496 US 582, 110 S Ct 

2638, 110 L Ed 2d 528 (1990), the court returned to the 

issue of what constitutes Fifth Amendment “interrogation.” 

The Court was confronted with an argument that certain

questions—those that are routine in the booking process—

do not constitute interrogation because they are not intended 

to elicit information for investigative purposes. A plurality 

of the Court rejected that argument, but held that replies 

to such questions are admissible under a “routine booking exception” to the Miranda rule. Id. at 600-02. But the 

same plurality suggested that certain other questions—

specifically, questions about whether a suspect in custody 

understood the instructions he had been given about a 

breathalyzer test and was willing to submit to the test—did 

not constitute interrogation within the meaning of Miranda

at least in part because those questions were “not likely to 

be perceived as calling for any incriminating response.” Id.

at 605. The Court thus appeared to adopt the view—without 

expressly addressing the issue, to be sure—that “interrogation” does not include all forms of direct questioning.

Not surprisingly, federal circuit courts have split 

on the issue of what constitutes “interrogation.” A few 

have held that, for Fifth Amendment purposes, “interrogation” includes any form of direct or express police questioning, regardless of content. See, e.g., Smiley v. Thurmer, 

542 F3d 574, 582 (7th Cir 2008) (“Innis does nothing more 

than define when police practices, other than express questioning, constitute interrogation.”) (Emphasis in original.); 

United States v. Montgomery, 714 F2d 201, 202 (1st Cir 

1 The ambiguities of Innis go much further than that. It is not entirely clear, 

for example, whether the Innis test imposes an objective or a subjective test, or 

whether it focuses on perceptions of the suspect or the officer. Once again, the 

opinion itself provides something for everyone, leading to splits among lower 

courts in every imaginable direction. See generally Kyle C. Welch, Asking the 

Scary Question: What Is the Correct Understanding of “Interrogation” Under 

Rhode Island v. Innis?, 50 Cal W L Rev 233, 256 (2014) (describing “chaotic 

outcomes in cases where interrogation was the principal issue”); Alexander S. 

Helderman, Revisiting Rhode Island v. Innis: Offering a New Interpretation of the 

Interrogation Test, 33 Creighton L Rev 729, 738 (2000) (“There is little consistency among the federal circuit courts’ interpretation of the Innis test.”).
Cite as 360 Or 302 (2016) 313

1983) (“Since the questioning here was express, we have no 

occasion to go farther. This was custodial interrogation.”). 

Most hold that direct questioning, by itself, is not enough to 

amount to “interrogation” for Fifth Amendment purposes. 

See, e.g., United States v. Booth, 669 F2d 1231, 1237 (9th Cir 

1981) (“We hold, therefore, that custodial questioning constitutes interrogation whenever, under all the circumstances 

involved in a given case, the questions are reasonably likely 

to elicit an incriminating response from the subject.”).

Article I, section 12, of the Oregon Constitution 

is phrased nearly identically to the Fifth Amendment in 

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

criminal prosecution to testify against himself.” In consequence, this court has found case law applying the Fifth 

Amendment guarantee to be useful in construing the similarly worded guarantee of Article I, section 12.

In State v. Kell, 303 Or 89, 95-100, 734 P2d 334 

(1987), this court concluded that the rule in Edwards

that police must cease interrogation once a defendant has 

invoked his Fifth Amendment rights is “equally applicable” 

to Article I, section 12. See also State v. Isom, 306 Or 587, 

593, 761 P2d 524 (1988) (“Upon request for counsel, questioning not only ‘should’ but must cease.”).

In State v. Meade, 327 Or 335, 963 P2d 656 (1998), 

the court concluded that police could engage in further 

interrogation if a defendant “initiated” further discussion 

about the investigation into whether the defendant had committed a criminal offense. Id. at 340. The court concluded 

that whether a defendant “initiated” such further discussion 

depended on whether the defendant had shown that he or 

she “was willing to enter into a generalized discussion of 

the substance of the charges without the assistance of counsel.” Id. That particular formulation of the test borrowed 

directly from the United States Supreme Court’s decisions 

in Bradshaw and Edwards, although the court did not mention those cases by name.2 See also State v. McAnulty, 356 

Or 432, 456, 338 P3d 653 (2014), cert den, __ US __, 136 

2 In fact, the majority’s borrowing from Fifth Amendment doctrine was one 

of the issues on which it and the dissent parted company. Id. at 351-52 (Durham, 

J., dissenting).
314 State v. Boyd

S Ct 34, 193 L Ed 2d 48 (2015) (Defendant “re-initiated” 

further conversation with authorities because her comments 

“expressed a willingness to continue a discussion about the 

investigation.”).

This court likewise borrowed from federal case law 

in determining what constitutes “interrogation” for Article I, 

section 12, purposes. In State v. Scott, 343 Or 195, 166 P3d 

528 (2007), the defendant was arrested on suspicion of murder, advised of his Miranda rights, and transported to the 

police station, where he was placed in an interview room. 

When two officers entered the room, the defendant said, 

“I would appreciate a lawyer present before I say anymore 

to you guys.” As one of the officers turned on a recording 

device, defendant said two more times that he wanted to see 

a lawyer. The officer replied that he wanted to review the 

defendant’s rights with him first and proceeded to reiterate his Miranda rights. The officer then asked whether the 

defendant had any questions about those rights, to which 

the defendant replied that he did not and that, because of 

what he had “seen on TV,” he thought he needed a lawyer. 

The officer responded with a question: “You saw something 

on TV?” The defendant explained that he had seen a report 

that he had “killed somebody.” The officer then replied, 

“Saying that you killed somebody, huh?,” after which he 

waited eight to ten seconds before asking whether defendant 

wanted a particular lawyer. The defendant said that he “just 

want[ed] one here.” The officer asked whether there was a 

particular lawyer that the defendant had worked with in the 

past, at which point the defendant stated that he no longer 

cared about a lawyer and that he was ready to speak with 

the officers. Id. at 198.

The defendant then made incriminating statements 

to the officers, which he later sought to suppress on the 

ground that the police did not cease interrogating him after 

he had invoked his right to counsel under Article I, section 

12. The trial court agreed and suppressed the statements, 

and this court affirmed. At the heart of the parties’ arguments on appeal was the meaning of the term “interrogation” for Article I, section 12, purposes. Both the defendant 

and the state tailored those arguments to the United States 
Cite as 360 Or 302 (2016) 315

Supreme Court’s decision in Innis. This court responded by 

explicitly relying on that Fifth Amendment decision:

“This court has emphasized that the constitutional protections afforded to suspects and criminal defendants set 

out in the Oregon Constitution require an analysis independent of similar protections set out in the United States 

Constitution. Here, however, the question does not concern 

the construction of any term set out in Article I, section 

12; instead, our task involves defining a familiar term—

‘interrogation’—that both this court and the United States 

Supreme Court repeatedly have used to delineate situations in which Miranda-type warnings are required or 

Miranda-type rights are implicated under either the state 

or federal constitutions. Additionally, neither party contends, in the context of each one’s arguments in this case, 

that the concept of interrogation carries any meaning different from the one that the United States Supreme Court 

articulated in Innis. In view of those considerations, we 

shall apply the Court’s definition of the term interrogation, 

for purposes of Miranda’s Fifth Amendment requirements, 

to our analysis of defendant’s Article I, section 12, rights 

at issue here.”

Id. at 203. This court noted that whether that questioning 

amounted to “interrogation” for Article I, section 12, purposes depended on whether that questioning was of a sort 

that “the police should know is likely to elicit an incriminating response,” taking into account “both the substance of the 

questions posed to [the] defendant and the manner in which 

those questions were asked.” Id.

Turning to the particular police questions at issue, 

the court noted that the officer’s questioning about what the 

defendant had seen on television was aimed at the very reason for the defendant’s arrest for murder and that “any further discussion of that broadcast would serve only to prolong 

a discussion that [the] defendant had tried to terminate 

and, indeed would be reasonably likely to elicit some type of 

incriminating response.” Id. at 203-04. The court observed 

that the officer’s long pause after asking about the television broadcast—“Saying that you killed somebody, huh?”—

provided the defendant “an invitation, and an opportunity, 

to provide an incriminating response.” Id. at 204.
316 State v. Boyd

The court’s analysis in Scott appears to dispose 

of defendant’s argument in this case that any direct questioning by police after an invocation of Article I, section 

12, rights amounts to “interrogation,” as a matter of law. 

The court concluded that the officer’s questioning in that 

case amounted to “interrogation” for Article I, section 12, 

purposes not merely because it was direct questioning, but 

because of “the substance of the questions posed to [the] 

defendant and the manner in which those questions were 

asked.” Id. at 203. Moreover, the court read Innis to require 

the application of an essentially objective test—namely, 

whether the nature of the police questioning was such that it 

was reasonably “likely to elicit an incriminating response.” 

Id.

Defendant insists that, although the court in Scott

did apply the “likely to elicit incriminating evidence” test 

to direct questioning, the case “does not control the resolution of this case” because no one in Scott made the precise 

argument that he is making and because failing to conclude that direct questioning of any sort is “interrogation” 

is inconsistent with Innis. We are not persuaded by either 

argument.

It is true that the court qualified its decision in Scott

with the observation that no one in that case had suggested 

that a different test should be applied. In subsequent cases, 

though, this court has cited Scott for the same test, without 

any such qualifications. See, e.g., State v. Vondehn, 348 Or 

462, 466 n 3, 236 P3d 691 (2010) (noting that whether police 

questions constitute “interrogation” for Article I, section 12, 

purposes depends on whether they are of a kind that “police 

should know [is] reasonably likely to elicit an incriminating 

response”).

To the extent that any ambiguity remains about the 

test for determining whether “interrogation” has occurred 

we conclude in this case that Scott correctly stated the test 

for the following reasons. First, whether Scott was correctly decided is not necessarily determined by reference to 

whether it properly applied Innis. As this court often has 

observed, while it may from time to time borrow a doctrine 

or concept from federal court decisions when it interprets or 
Cite as 360 Or 302 (2016) 317

applies the state constitution, the court is doing so “because 

it finds the views there expressed persuasive, not because it 

considers itself bound to do so by its understanding of federal doctrines.” Kennedy, 295 Or at 267.

Second, in any event, Scott is not inconsistent 

with Innis or later United States Supreme Court case law. 

We noted earlier that Innis itself is not a model of doctrinal clarity; the Court left notoriously unclear whether its 

“likely to elicit an incriminating response” test applied 

to direct questioning. The Court’s later opinion in Muniz, 

however, strongly suggests that the Innis test does apply to 

direct questioning. The Court held that some forms of direct

questioning—for example, questions about whether a person being asked to undergo sobriety testing understands the 

instructions and is willing to submit to the testing—do not 

constitute “interrogation” for Fifth Amendment purposes at 

least in part because such questions are not likely to elicit 

incriminating responses. 496 US at 605.

Third and finally, aside from the fact that Scott

appears consistent with post-Innis federal case law, its 

holding makes sense on its own terms. The notion that 

all forms of direct questioning constitute “interrogation” 

for constitutional purposes is unrealistic. Some types of

questions—“Would you like a glass of water?”—are often 

innocuous and do not implicate the constitutional concerns that form the underpinnings of Article I, section 12, 

and Fifth Amendment rights. See generally LaFave et al, 

2 Criminal Procedure 854-55 (4th ed 2015) (cases holding 

that some “innocuous” questions do not implicate Miranda

are “certainly correct”). The heart of both state and federal 

constitutional guarantees, after all, is protecting against 

compelled incrimination. See generally State v. Davis, 350 

Or 440, 455-57, 256 P3d 1075 (2011) (reviewing history and 

prior case law regarding constitutional guarantees of “compelled self-incrimination”). In that regard, we find persuasive the discussion of the issue by the Court of Appeals for 

the Ninth Circuit in Booth. Holding that “interrogation” consists of not all police questioning, but only questioning that 

is reasonably likely to produce an incriminating response, 

the court explained:
318 State v. Boyd

“[W]e believe that the reasoning supporting the Court’s 

decision [in Innis], indeed, the very purpose behind Miranda

itself, compels the conclusion that not every question posed 

in a custodial setting is equivalent to ‘interrogation.’

“* ****

“* ** Certainly not every question is an interrogation. 

Many sorts of questions do not, by their very nature, involve 

the psychological intimidation that Miranda is designed 

to prevent. A definition of interrogation that included any 

question posed by a police officer would be broader than 

that required to implement the policy of Miranda itself.”

Booth, 669 F2d at 1237.

With the foregoing legal principles in mind, we turn 

to the issues in this case. As we noted, once a suspect has 

invoked the rights to remain silent and to counsel under 

Article I, section 12, police must immediately cease interrogation unless the suspect initiates further conversation with 

the police. Isom, 306 Or at 593. In this case, then, the questions are (1) whether defendant himself initiated further 

conversation with the police and, if not, (2) whether police 

continued unlawfully to interrogate him.

The Court of Appeals answered the first question in 

the negative. Boyd, 270 Or App at 47. On review before this 

court, defendant contends that the Court of Appeals was 

correct in that respect. The state contends that “defendant 

initiated a conversation” with Lewis by asking, “Is anybody 

going to tell me why I’m here, I need to call my baby girl 

because she’s going to wonder where I’m at?”

We conclude that the Court of Appeals was correct. 

In arguing that defendant “initiated” further conversation 

with the police, the state focuses on whether any police 

interrogation that occurred was in any way prompted by 

something that defendant said first. That, however, is not 

the test. The test is whether a defendant’s questions or 

statements indicate that he or she “was willing to enter into 

a generalized discussion of the substance of the charges 

without the assistance of counsel.” Meade, 327 Or at 340. A 

defendant merely asking why he or she has been taken into 

custody does not satisfy that test, and the state does not 

appear to contend otherwise.
Cite as 360 Or 302 (2016) 319

The Court of Appeals also answered the second 

question in the negative. The court explained that, when 

Lewis asked defendant whether he recalled having a conversation with Myers about defendant having killed his 

girlfriend and whether defendant had referred to his girlfriend as his “baby girl,” those questions were not of such 

a nature that Lewis should have known they would likely 

elicit an incriminating response from defendant. Boyd, 270 

Or App at 47-48. On review, defendant argues that the court 

erred in so concluding. The state, meanwhile, argues that 

the court correctly determined that Lewis’s questions were 

merely “follow-up” questions intended to clarify the nature 

of defendant’s inquiries.

We conclude that defendant is correct that the Court 

of Appeals erred. As this court explained in Scott, whether 

police questioning constitutes unlawful “interrogation” for 

Article I, section 12, purposes depends on whether “the substance of the questions posed to [the] defendant and the 

manner in which those questions were asked” demonstrated 

that they were “likely to elicit some type of incriminating 

response.” 343 Or at 203-04. In this case, when defendant 

asked why he had been taken into custody, Lewis responded 

with questions of his own about whether defendant was referring to his girlfriend Archibald and whether he recalled the 

earlier conversation with Myers, when Myers told defendant 

that Archibald was dead. It should be recalled that Lewis 

was present when defendant had that prior conversation 

with Myers, and he was aware of defendant’s response to 

that conversation. Specifically, Lewis knew that defendant 

had become agitated when told that his girlfriend had been 

killed, that he had disclaimed any memory of an altercation 

with his girlfriend, and that he had claimed not to remember how his hand had been hurt. Lewis knew that defendant 

had denied knowing that his girlfriend was dead and that, in 

fact, defendant had asserted at least six times that he did not 

believe that his girlfriend was dead. In other words, Lewis 

was well aware that defendant’s memory of the assault was 

very much in issue and that posing the questions that he 

did was likely to agitate him. In that context, Lewis should 

have known that any further questioning about defendant’s 

memory concerning the assault or the investigation into the 
320 State v. Boyd

assault was reasonably likely to elicit from defendant an 

incriminating response, either in cornering defendant into 

a possibly far-fetched theory of the defense or in provoking 

him to make potentially inconsistent statements about his 

memory of the events that later could be used to impeach 

him.

The state argues in the alternative that, even if 

Lewis’s questions constituted unlawful interrogation, those 

questions did not produce any incriminating information. 

According to the state, the incriminating statements that 

defendant sought to suppress occurred only after defendant 

told Lewis that he wanted to talk to Myers. Citing State v. 

Acremant, 338 Or 302, 108 P3d 1139, cert den, 546 US 864 

(2005), the state argues that, even when an officer disregards a suspect’s invocation of Article I, section 12, rights, 

the suspect may later validly waive his or her rights and 

speak with police so long as the defendant’s later renewal of 

contact with police was not a product of the earlier unlawful 

interrogation.

We are not persuaded by the state’s alternative argument. In Acremant, the defendant was arrested in Stockton, 

California, on suspicion of having committed two murders in 

Oregon. He was transported to the local police station. Two 

Oregon police detectives met with the defendant, informed 

him of his Miranda rights, and confirmed that the defendant understood those rights. Id. at 317-18. The defendant 

spoke with the detectives for a short time, but then invoked 

his right to counsel. The Oregon detectives said that they 

were “disappointed” that the defendant had elected to end 

the interview, that they were interested in hearing his side 

of the story, and that they were curious about his motive for 

the murders. There followed an approximately 13-minute 

conversation about the investigation, including the detectives’ theory of his motive for the crimes. The two Oregon 

detectives ultimately left, saying to the defendant that they 

would be in Stockton for a few more days and that, if he 

decided that he wanted to talk to them, he should let the jail 

staff know. Id. at 318-19.

About an hour later, the defendant knocked on 

the door of the interview room and asked to speak to the 
Cite as 360 Or 302 (2016) 321

detectives from Oregon. Shortly after that, two different 

Oregon detectives met with him, readvised him of his constitutional rights, and interviewed him. During that interview, the defendant made inculpatory statements about 

the two murders. Id. at 319. The defendant later moved to 

suppress those statements, but the trial court denied the 

motion. Id. at 320-21.

On review of the denial of the motion, this court 

affirmed. The court began by concluding that the first two 

Oregon detectives had indeed violated the defendant’s rights 

under Article I, section 12, when they continued to probe 

him about the murders after he had invoked his right to 

counsel. Id. at 322. But the court concluded that the inculpatory statements that the defendant later made to the police 

need not be suppressed, because the prior unlawful interrogation had not “induced” the defendant to make them. Id. at 

322-23. The court noted that the first two detectives had left 

the defendant alone for an hour, after which time he reinitiated contact with them on his own. Id. at 323.

This case is distinguishable. In Acrement, there was 

a clear break of approximately one hour between the unlawful interrogation and the defendant’s later unprompted 

reinitiation of contact with the police. In this case, there 

was no break at all. In this case, unlike Acremant, there 

was a causal connection between Lewis’s interrogation of 

defendant and defendant’s request to talk with Myers. After 

defendant asked why he had been taken into custody, Lewis 

asked defendant if he remembered Myers telling him why 

he had been arrested and stated further that, in fact, Lewis 

remembered Myers telling defendant that he had been 

arrested for killing his girlfriend. Defendant immediately 

became “agitated” and responded that, “no, no, she ain’t 

dead, you’re lying and * ** I want to talk to the detective 

that you said I talked to.” Defendant’s request to speak with 

Myers thus was hardly unprompted. It was a direct response 

to Lewis’s interrogation of defendant in violation of Article I, 

section 12.

We conclude that police interrogated defendant in 

violation of his state constitutional right to counsel and that 

the incriminating statements to Myers that resulted from 
322 State v. Boyd

that violation should have been suppressed. The state concedes that, if the trial court erred in failing to grant defendant’s motion to suppress, the admission of his statements 

was not harmless. The case therefore must be reversed and 

remanded for a new trial. Because of our decision on state 

constitutional grounds, we need not address the parties’ 

arguments under the Fifth Amendment.

The decision of the Court of Appeals is reversed. 

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

is remanded to the circuit court for further proceedings.