No. 650 December 13, 2023 479

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CONOR AUSTIN GOLD,

Defendant-Appellant.

Benton County Circuit Court

20CR22569; A177144

Locke A. Williams, Judge.

Argued and submitted August 30, 2023.

Marc D. Brown, Deputy Defender, argued the cause for 

appellant and filed the brief for appellant. Also on the brief 

was Ernest Lannet, Chief Defender, Criminal Appellate 

Section, Office of Public Defense Services.

Christopher A. Perdue, Assistant Attorney General, 

argued the cause and filed the brief for respondent. Also 

on the brief were Ellen Rosenblum, Attorney General, and 

Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Egan, Judge, and 

Kamins, Judge.

TOOKEY, P. J.

Reversed and remanded.

Kamins, J., dissenting.
480 State v. Gold

TOOKEY, P. J.

Defendant appeals a judgment of conviction for 

seven counts of first-degree encouraging child sexual abuse, 

ORS 163.684, and one count of encouraging sexual assault 

of an animal, ORS 167.341. On appeal, defendant assigns 

error to the trial court’s denial of his motion to suppress. 

Specifically, among other points, defendant contends that 

law enforcement violated his rights under Article I, section 

12, of the Oregon Constitution when officers interrogated 

defendant after he invoked his right to counsel.1

 For the reasons below, we reverse defendant’s convictions and remand 

for further proceedings.

BACKGROUND

“We review the denial of a motion to suppress for 

legal error and are bound by the trial court’s findings of fact 

if evidence in the record supports them.” State v. Gillispie, 295 

Or App 702, 704, 436 P3d 65, rev den, 365 Or 194 (2019). We 

state the following facts in accordance with that standard.

In January 2016, defendant was convicted of two 

counts of first-degree encouraging child sexual abuse, ORS 

163.684, and seven counts of second-degree encouraging 

child sexual abuse, ORS 163.686. Defendant’s convictions 

were the result of evidence discovered by Detective Dale 

and others when executing a search warrant on defendant’s 

mother’s home. Defendant resided at his mother’s home at 

all times relevant to defendant’s 2016 convictions and to 

the convictions defendant now appeals. As part of his probation for the 2016 convictions, defendant was prohibited 

from possessing any device with access to the internet without the written approval of his probation officer. He was 

also required to consent to search upon his probation officer’s reasonable belief that evidence of a probation violation 

would be found.

In October 2016, during a polygraph examination, 

defendant admitted to accessing child sexual abuse materials. 

1 Article I, section 12, provides that, “[n]o person shall be * ** compelled in 

any criminal prosecution to testify against himself.” The Article I, section 12, 

“right against self-incrimination includes a derivative right to counsel during 

custodial interrogation.” State v. Scott, 343 Or 195, 200, 166 P3d 528 (2007).
Cite as 329 Or App 479 (2023) 481

That information was sent to Dale who, in November 2016, 

served a second warrant on defendant’s mother’s home.

In November 2019, defendant’s probation officer, 

Johnson, during a search of defendant’s mother’s home, 

seized an X-Box that defendant possessed and had been 

using to access the internet. Johnson gave the X-Box to 

Dale to search. Subsequently, Dale located multiple email 

accounts associated with the X-Box.

In January 2020, defendant gave consent for law 

enforcement to monitor the email accounts Dale had discovered. From his review of those email accounts, Dale also discovered that, within minutes of Johnson leaving defendant’s 

mother’s house with the seized X-Box in November 2019, 

a new device—a Kindle Fire—had been associated with 

defendant’s Comcast account. Dale began an investigation 

“related to the viewing and accessing of child sexual abuse 

material through the X-Box.” Dale also informed Johnson 

about the Kindle and started preparing a third search warrant for defendant’s mother’s home.

In March 2020, as a result of monitoring defendant’s email accounts, Dale received an email notification 

from Comcast that defendant had activated a one-hour on 

demand-internet pass. Dale immediately notified Johnson 

that defendant had activated the internet pass.

Johnson and another probation officer, Dede, then 

went to defendant’s mother’s house try to locate the Kindle 

Fire that defendant was using to access the internet, “knowing that [defendant had] only gotten a one-hour pass,” which 

left a just narrow window for Johnson and Dede to “go out 

there and pretty much confirm that yes, he has this device,” 

which Johnson planned to seize. Johnson also arranged for 

Dale to meet her at defendant’s mother’s house.

When Johnson arrived at defendant’s mother’s 

house, defendant’s mother let Johnson and Dede in and 

led them upstairs to defendant’s room. Defendant’s door 

was closed. Defendant’s mother knocked on the door and 

announced, “Your PO is here.” Defendant opened the door. 

Johnson told defendant that she was there to do a residence 

check, that “based upon information that we had received 
482 State v. Gold

from ** * email” she “believed that he had been accessing 

the internet through a device,” and asked for consent to 

search his room for a device. Defendant said that he “wasn’t 

sure” if he wanted to consent to a search. By that point, Dale 

had arrived, and the events that followed, as summarized 

below, were recorded on Dale’s body camera.

Johnson said to defendant, “so you don’t want to consent to a search, do you want to tell me where the device is?” 

In response, defendant disclosed to Johnson that he had a 

PlayStation in the closet, and Johnson responded, “OK, a different one than that?” Johnson then asked to look in the closet 

at the PlayStation and defendant consented to that request.

Johnson then said to defendant, “So are there other 

devices? Where? Come on.” Johnson went on to say to defendant, “So this one[, the PlayStation,] is different than you’ve 

had before, alright? So other devices.” And then Johnson 

asked defendant about the power cords for the PlayStation.

Defendant’s mother, who had been present for 

Johnson’s entire exchange with defendant, then asked 

whether this was about “adding a new device,” and Johnson 

responded that this was “more specifically about [defendant’s] 

use.” After a brief exchange with defendant’s mother, Johnson 

asked defendant’s mother whether defendant had spoken to 

her about the X-Box that Johnson had seized that defendant 

had been using to access the internet, and defendant’s mother 

indicated that defendant had not. Johnson testified that she 

asked defendant’s mother about the X-Box because she had 

twice previously spoken with defendant about “sharing that 

information with his mom and discussing it” with her for 

reasons of “safety, protection,” and “accountability.” Johnson 

then said to defendant, “so you still haven’t done that?”

Johnson then asked defendant again, “[Defendant,] 

do you want to tell me where your other device is?” And followed that statement by saying to defendant:

“Well, you know when you think of it if you’re really wanting to change behaviors there’s that honesty part that 

comes with it. And obviously it’s always a choice, *** but if 

you are really wanting something different and to change 

those that’s part of it.”
Cite as 329 Or App 479 (2023) 483

Defendant said he did not think he had enough 

information regarding consenting to a search, and Johnson 

read defendant information about his obligation to consent 

to searches by his probation officer before telling him, “So 

like I said, it’s up to you, you’re the one that has that ability 

to give consent.”

Defendant’s mother then asked whether defendant would be taken into custody if he did not consent to 

a search, and Johnson told her that she did not know, and 

that it depends on the “totality of the situation.” Defendant’s 

mother told Johnson that she is “never comfortable with 

searches of her house,” and defendant then stated that he 

did not consent to a search.

Defendant’s mother asked Johnson if “there is 

something specific that you are looking for that he can hand 

over to you?” And Johnson said, “yes, *** specifically an 

electronic device that accesses the internet. Most likely a 

tablet or phone.” After that, defendant pointed out that he 

had disclosed the PlayStation, and Johnson said, “[defendant,] that’s why I asked you if you wanted to tell me where 

the other device is.” Defendant reiterated that he did not 

consent to a search.

Johnson, Dede, Dale, defendant, and defendant’s 

mother then went downstairs. Johnson spoke with Dale outside the residence and told him that she was going to take 

defendant into custody for a probation violation based on his 

refusal to consent to a search, but that she needed someone 

who was able to transport him. Dale arranged for another 

individual from the sheriff’s office, Lieutenant Duffitt, to 

come to the residence to transport defendant. Dale and 

Johnson then returned to the house. Johnson explained to 

defendant that he was under arrest for violating the conditions of his supervision, but that he would not need to be 

handcuffed while they were waiting for a car to transport 

him as long as he consented to a patdown. He consented.

Once Duffitt arrived approximately 13 minutes 

later, Dale read defendant his Miranda rights, handcuffed 

him, and defendant’s mother told defendant to “ask for a 

lawyer.” Defendant said, “I’m requesting a lawyer,” and his 
484 State v. Gold

mother said, “No, I mean, if you’re going to be questioned.” 

Defendant responded, “All right then. I hear you.” Dale then 

told defendant and his mother, “I have no intentions of questioning him right now, but as soon as we’re done here I’m 

going to kind of fill everybody in on what’s going on.”

At that point, with defendant sitting on the bottom 

of the stairs, handcuffed, Dale said to defendant and his 

mother that he was “just going to lay out” all the information he has “because at this point there is no need to keep 

anything secret.” Dale “mostly directed” the statements that 

followed, which presented some of the evidence law enforcement had collected regarding defendant, toward defendant’s 

mother, who was sitting on a couch inside a room across from 

the stairs.2

 But defendant was seated only a few feet from 

Dale and could hear Dale. During the suppression hearing, 

Dale testified that everyone at that point was “kind of in 

a circle,” although defendant’s mother was “in a different 

room.”

The following exchange then occurred:

“DALE: [Defendant’s] email accounts were signed over 

[to us]. He consented to giving us access and controlling 

three email accounts back in January. Inside of one of 

those three email accounts there are receipts dating back 

to 2017. Those receipts are coming from Comcast. They 

are receipts for paying for on-demand Wi-Fi. Comcast has 

cable modems in millions of homes and businesses across 

the United States. There is a home in your neighborhood 

2 We note that, during the suppression hearing, Dale agreed with defendant’s characterization that he presented the evidence that the state had against 

defendant after defendant had asked to speak with an attorney:

“Q. When you got there you were aware that [defendant] had requested to 

speak with an attorney?

“[DALE]. Yes.

“Q. And you went on to present the evidence that you had against [defendant]; correct?

“[DALE]. Yes.”

Dale testified as follows regarding his intention when “fill[ing] everybody in”:

“[DALE]. At that point I wanted to make sure that [defendant’s] mother, who 

he’s living with, was fully aware of the behavior that he was engaging in which 

would have been happening under her nose, I would assume without her knowing, so that she could be fully understanding of what his actions have been and 

to be fully aware of our processes and what needed to happen from here on out.”
Cite as 329 Or App 479 (2023) 485

within range of this house that is broadcasting one of those 

publicly available Wi-Fi hotspots. Individuals can use a 

device to sign on and use a credit card. It could be a prepaid 

card that you buy from the store. And you can pay for a onehour block of time, a two-hour block of time, a one-day pass, 

a one-week pass, or a one-month pass for various amounts. 

And then once a month you get a one-hour pass for free. 

So there are receipts dating back to 2017. I’ve analyzed 

the receipts for 2019. And in comparison to the number of 

hours there are in the year of 2019, he had paid for enough 

Wi-Fi passes to cover 49.37% of the year. So for half of the 

year he has access to the internet.

“We also know that within minutes of [Officer Johnson] 

leaving here in November [2019] that same email account 

got an email from Comcast that says ‘Is this Amazon Fire 

tablet that you just added to your account—is this you? Is 

this an authorized access to your on-demand account?’ So 

we know that [defendant] had activated [an] Amazon tablet 

on his Wi-Fi account.

“So we know that he’s been paying for Wi-Fi passes. His 

last one that he paid for expired, I think, on Monday night 

around 6 pm. It was a one-week pass. And this morning 

probably about an hour and ten minutes ago he activated 

a one-hour free pass to access the internet that would have 

now expired about 10 or 15 minutes ago. So we do know 

that accesses to those Wi-Fi spots have been happening 

from an account that he gave us consent to use, that he 

has a password to use, and that has other emails in there 

that are indicative of him using because he is mentioning 

to us giving consent in the past for usernames that are all 

associated with some of these other accounts that are also 

in there. And then we know from data from Comcast that 

those access times—they’re all hitting one of those Wi-Fi 

hotspots here in your cul-de-sac.

“So we intend to continue to write a search warrant to 

search your home for any devices that are capable of accessing the internet to include—

“DEFENDANT’S MOTHER: My entire home?

“DALE: Yes. To include—

“DUFFIT: We came here looking for the consent and 

cooperation rather than writing a search warrant, hitting 

your door down, coming in, spending a—hours and hours 
486 State v. Gold

of time to look for these devices and this particular device 

out of respect for you and out of respect for this household. 

We came looking for consent, hoping that somebody would 

understand that, especially somebody who’s been down this 

road before, right? So, I’ll let you continue with what our 

road is for the search warrant. We can still provide you 

options. It doesn’t necessarily have to happen. We can give 

you options, okay?

“DEFENDANT’S MOTHER: But you’re going to start 

with his room and not tear apart my house?

“DALE: Just to back up a little bit. I was already in the 

process of writing the search warrant. It is not complete at 

this time. I have not applied for that search warrant to a 

judge. My intention is to complete that process today and 

go in front of a judge and apply to receive that search warrant. But my intention would be that that search warrant 

would cover the entirety of this household because we don’t 

know where he would be hiding such a device. I mean, the 

search warrant—regardless of where we start with the 

search warrant, the search warrant is going to authorize 

a search of everywhere, because we don’t know where he 

could be hiding something. So, again, our intention was 

now that we knew that he had come online this morning at 

8:25 or 8:26 am that we knew he could be home and we were 

hoping that through the process of his conditions of probation and him being able to provide consent through that 

that we could find it and potentially avoid having to do the 

search warrant. But obviously things have changed now. 

So my intention is going to be to seal off his room with evidence tape and we will leave, and we will work on writing a 

search warrant. When and if we are able to get that search 

warrant and come back, if for some reason, we find that 

that evidence tape has been cut or been removed from his 

room that would be grounds for us to arrest anybody in the 

household for tampering with evidence and other crimes 

related to impeding our investigation. So that’s where we’re 

at right now. And that’s where we intend to move forward.”

At that point, Duffitt told defendant’s mother, “[u]nless 

you know what we’re looking for, and we can obviously 

go down that road.” To which defendant’s mother replied, 

“I have no idea. But [defendant], I don’t want them going 

through my house. If this is where we are, this is where we 
Cite as 329 Or App 479 (2023) 487

are.” Defendant did not respond to his mother. Duffitt then 

said to defendant:

“[Defendant,] I understand that your mom instigated 

you to say you wanted a lawyer before any questioning. 

We’re obviously not questioning you. But we can address 

that if you want to talk further or if you want to go down 

that road. That’s fine. That’s up to you. I’m not by any means 

making any promises, threats, any other thing that’s going 

to be—besides you changing your mind. You can always let 

us know that too.”

Defendant’s mother then said to defendant: “If 

they’re going to find something through a search warrant,” 

and defendant interjected, “Please, just give me a minute.”

Dale then went into the office where defendant’s 

mother was sitting and, using his phone, showed her the 

email defendant had received that morning reflecting that 

defendant had used an “on-demand” Wi-Fi pass that morning. The following exchange occurred:

“DALE: So for instance, I set up his account which he 

gave us consent to take over * ** to forward any of these 

emails that come in his account to myself.

“DEFENDANT’S MOTHER: Yeah, I got it, I 

understand.

“DALE: And so the email says ‘Thanks for ordering a Wi-Fi on-demand pass. Your pass was activated on 

3/18/2020 at 11:25 am Eastern Standard Time,’ so that 

would be 8:25 am here. And you can use it through the 

same day an hour later at any hotspot. And on this particular one it doesn’t show that he used a credit card to 

pay because it’s just going to be the one-hour free monthly 

pass that you can get. And that was sent to girlcave69@

[ ].com. That’s one of the three that he gave us consent 

to take over earlier. So, that’s—and I’ve got 57 other emails 

like this going back to 2017.”

Shortly thereafter, Johnson told defendant, “so, 

[defendant], we are going to be transporting you soon, 

so.” Duffitt and Dale briefly conferred in the kitchen, and 

although the exchange is largely indiscernible on Dale’s 

body camera footage, Dale testified that he and Duffitt were 

concerned that defendant “might have been conflicted in 
488 State v. Gold

wanting to talk with us further or to make any statements 

to us or to consent to seizure of this device in front of his 

mother and so we were discussing whether or not he could—

may or may not feel more comfortable having this discussion 

or this thought process somewhere else.”

Duffitt and Dale returned to the living room and 

Duffitt asked defendant, “[g]iven where you’re at, man, 

would you rather be outside not in front of everybody else?” 

Defendant responded, “I’m going to tell you where it is.”

Dale and Duffitt then went upstairs with defendant 

and Duffitt told defendant:

“You still have the right to remain silent. You have the 

right to talk to an attorney before you talk to us at all. 

Before you give consent for anything, okay? And we, like 

he explained, we’d be applying for and asking a judge for 

a search warrant so if you consent it’s your consent alone, 

okay? You do not have to give consent. You do not have to 

do that. Do you understand that? I just want to make sure 

you understand you’re giving consent based on consent not 

because there’s any other promises or fear you have.”

Defendant answered, “I just fear that you’re going 

to emotionally destroy my mother by pulling our house apart 

again and that is what I’m basing this decision on.”

Duffitt, Dale, and defendant then discussed consent 

further and had the following exchange:

“DEFENDANT: I am choosing to tell you where this is 

to help my mother. Not for any reason for myself. Because I 

do not want my mother to suffer any more than she already 

is. I am consenting. I understand what that means.

“DUFFITT: Consenting to show us where this device 

is at?

“DEFENDANT: Yes.

“DUFFITT [to Dale]: Any follow up?

“DALE: No, just, again, we’re just making sure 

because you told us ‘no’ before, which is fine, and so in those 

circumstances we have to make it blatantly clear and obvious that it’s not because, you know, we’re coercing you, or 

making you promises of any kind.
Cite as 329 Or App 479 (2023) 489

“DEFENDANT: You are not promising me anything. I 

merely wish to save my mother a little bit of pain.”

Defendant then directed Dale and Duffitt to the 

Kindle Fire, which was hidden behind some books on his 

bookshelf. Law enforcement did not conduct any further 

search of the bedroom or seek any further consent to search 

the bedroom.

As a result of content found on the Kindle Fire, the 

state charged defendant with 19 counts of sexual misconduct, including encouraging child sexual abuse and encouraging the sexual assault of an animal. Relying on Article I, 

section 12, defendant moved to suppress any evidence gathered by law enforcement after he had invoked his right to 

counsel as the product of unlawful interrogation.3

The trial court denied defendant’s motion to suppress. It first determined that defendant unequivocally 

invoked his right to counsel, but that “law enforcement 

talking with him about the consent afterward” was “not 

impermissible” and was “not designed to elicit incriminating statements,” but merely “advising him regarding the 

consent.” It further found that defendant’s decision to disclose the location of the Kindle Fire was made “to protect his 

mother” and “not have another search” of the home.

Subsequently, defendant entered a conditional 

guilty plea to seven counts of first-degree encouraging child 

sexual abuse, ORS 163.684, and one count of encouraging 

sexual assault of an animal, ORS 167.341. This appeal 

followed.

THE APPEAL

Defendant assigns error to the trial court’s denial 

of his motion to suppress. Defendant argues, in pertinent 

part, that under the totality of the circumstances, law 

enforcement violated his rights under Article I, section 12, 

“when they made statements that were likely to elicit an 

3 We note that, “[w]here a defendant’s Article I, section 12, right to counsel 

has been violated, the remedy for that violation extends not only to a defendant’s 

uncounseled responses to a detective’s questions but also to the physical and 

testimonial evidence that is the product of that violation.” State v. Joaquin, 307 

Or App 314, 324, 476 P3d 1263 (2020).
490 State v. Gold

incriminating response.”4

 Specifically, as defendant sees it 

and as clarified at oral argument, law enforcement violated 

defendant’s Article I, section 12, rights when they “pressured defendant to reveal the location of the Kindle.”

The state responds that officers did not violate 

defendant’s rights under Article I, section 12, because they 

did not interrogate defendant “by accepting defendant’s decision to disclose the computer tablet after his mother urged 

him to do so” or when they explained “to defendant’s mother 

that they would apply for a search warrant based on defendant’s activities.” As the state sees it, “none of the officers’ 

statements to defendant’s mother were statements that they 

should have known were reasonably likely to elicit an incriminating response from defendant.”5

 The state also likens this 

4 Defendant also makes various arguments under the Fifth Amendment to 

the United States Constitution and Article I, section 11. In light of our analysis 

in this opinion, which concludes law enforcement violated defendant’s rights 

under Article I, section 12, we need not address defendant’s Fifth Amendment or 

Article I, section 11, arguments. 

5 The state also argues that “even if the officers interrogated defendant under 

Article I, section 12, defendant’s decision to disclose the computer tablet was attenuated from the alleged illegality.” Further, pointing to a statement in its response 

to defendant’s motion to suppress in the trial court that “[w]hen looking at the 

totality of the circumstances, there is no evidence [defendant’s] consent was anything other than an act of free will,” the state argues that it sufficiently raised its 

attenuation theory below and, therefore, we may affirm on the basis of attenuation.

We disagree that the state adequately raised its attenuation theory below. In 

the trial court, the state argued that the evidence at issue did not need to be suppressed because (1) a request for consent to search is not an interrogation in violation of the right to counsel and (2) defendant’s consent was voluntary. But whether 

officers unlawfully interrogated defendant, and whether he subsequently voluntarily told officers the location of the tablet, are different issues than whether 

police exploited the unlawful interrogation to obtain the disputed evidence. See 

State v. Unger, 356 Or 59, 79, 333 P3d 1009 (2014) (“Voluntary consent, while 

important, is not dispositive and does not relieve courts of undertaking the factspecific exploitation analysis.”). And because the state did not raise its attenuation 

theory below, the trial court never engaged in the necessary “fact-specific inquiry” 

regarding whether the state carried its burden of proof under that theory. State v. 

Escudero, 311 Or App 170, 174, 489 P3d 569 (2021) (noting “the determination of 

whether law enforcement exploited unlawful conduct to obtain consent involves a 

fact-specific inquiry into the totality of the circumstances to determine the nature 

of the causal connection” (internal quotation marks omitted)).

Further, we disagree with the dissent that the state’s attenuation argument 

“meets the ‘right for the wrong reason’ exception as described in” Outdoor Media 

Dimensions Inc. v. State of Oregon, 221 Or 634, 659-60, 20 P3d 180 (2001). 329 

Or App at 500-01 (Kamins, J., dissenting). Indeed, the state does not argue that 

the requirements of Outdoor Media are met. State v. Carter, 315 Or App 246, 

250, 498 P3d 822 (2021) (noting that it is “the state’s burden to establish that the 
Cite as 329 Or App 479 (2023) 491

case to State v. Hatfield, 246 Or App 736, 743, 268 P3d 654 

(2011), rev den, 352 Or 341 (2012), where, as discussed further below, we held that mere request for consent to search is 

not “interrogation” under Article I, section 12.

A suspect “has an Article I, section 12, right to counsel that derives from the state constitutional Miranda right.” 

State v. Swan, 363 Or 121, 124, 420 P3d 9 (2018). The Article I, 

section 12, right to counsel “attaches when a suspect who is 

in custody or compelling circumstances invokes the right.” Id.

Once a suspect has invoked that right, law enforcement “interrogation” must cease. State v. Shevyakov, 311 Or App 82, 87, 

489 P3d 580 (2021). “‘Interrogation,’ for purposes of Article I, 

section 12,” means not just questioning, but any “police statements or conduct likely to elicit some type of incriminating 

response.” Id. (some internal quotation marks omitted); see 

also Rhode Island v. Innis, 446 US 291, 301, 100 S Ct 1682, 

64 L Ed 2d 297 (1980) (holding that under the Fifth 

Amendment to the United States Constitution “interrogation” 

“refers not only to express questioning, but also to any words 

or actions on the part of the police (other than those normally 

attendant to arrest and custody) that the police should know 

are reasonably likely to elicit an incriminating response from 

the suspect” (footnote omitted)).

More specifically, “because Article I, section 12, concerns the right not to be compelled to testify, interrogation 

means statements or conduct likely to elicit (1) an incriminating response that is (2) testimonial; and (3) that the prosecution later may seek to introduce at trial.” Shevyakov, 311 

Or App at 87 (internal quotation marks omitted).6

requirements for affirmance on an alternative basis are satisfied”). But, in any 

event, given “the fact-intensive nature of the lack of exploitation inquiry, we have 

frequently declined the state’s invitation to affirm denial of a suppression motion 

on that alternative basis when the state did not argue lack of exploitation below.” 

State v. Aguirre-Lopez, 291 Or App 78, 86, 419 P3d 751 (2018) (collecting cases). 

In this case, at the very least, affirming under the “right for the wrong reason” 

doctrine is not appropriate because, had the state raised its attenuation argument below, defendant might have created a different record in the trial court. 

State v. Najar, 287 Or App 98, 109-10, 401 P3d 1205 (2017) (declining to consider 

attenuation argument as alternative basis to affirm because “[a]t a minimum, 

[the defendant] might have chosen to testify about how the initial illegal seizure 

contributed to his ultimate consent and admission to possessing drugs”).

6 Under Article I, section 12, “interrogation” does not include questions “normally attendant to arrest and custody.” State v. Schmidtke, 290 Or App 880, 885, 
492 State v. Gold

In considering whether the conduct of law enforcement violates a defendant’s Article I, section 12, rights, we 

have explained that a “consent to search is not an incriminating statement under Article I, section 12,” and, for that 

reason, a request for consent to search is not “interrogation” 

under Article I, section 12. Hatfield, 246 Or App at 743-44.7

Thus, in Hatfield, we concluded that law enforcement did not violate the defendant’s Article I, section 12, 

right to counsel when, after the defendant invoked his right 

to counsel, law enforcement repeatedly requested the defendant’s consent to search his residence and informed him 

that, if he did not consent, they would apply for a search 

warrant. Id. at 73-40, 745. The defendant in Hatfield ultimately consented to the search of his residence with the 

caveat that he be permitted “to sit on his couch with his 

handcuffs removed, put away his dogs, and smoke a cigarette,” and that officers not “ransack the house.” Id. at 739.

We have also explained that, in some cases, confronting “a detainee with the evidence against [them] can 

constitute interrogation,” although it does not always. State 

v. Schmidtke, 290 Or App 880, 887, 417 P3d 563 (2018). The 

“manner in which the defendant is confronted with that evidence affects the analysis.” Id. (internal quotation marks 

omitted).

Both State v. Bradbury, 80 Or App 613, 723 P2d 

1051, rev den, 302 Or 342 (1986), and State v. Guayante, 63 

Or App 212, 663 P2d 784, rev den, 295 Or 541 (1983), are 

illustrative of the analysis we undertake in determining 

whether confronting a detainee with the evidence against 

them constitutes interrogation:

417 P3d 563 (2018). We do not understand the state to contend that the conduct of 

law enforcement in this case constitutes questions normally attendant to arrest 

and custody. 

7 We pause to note that that rule from Hatfield is subject to an important 

caveat: It applies only where the law precludes the use of a person’s refusal to consent to search at trial. Shevyakov, 311 Or App at 90 (“[W]e conclude that the rule 

we have discerned—that asking for consent to search * ** constitutes impermissible interrogation unless the law precludes the use of a person’s refusal against the 

person at trial—is the one demanded by the dictates of current precedent.”).

As explained below, 329 Or App at 495, in our view, the officers’ conduct in 

this case was likely to elicit the incriminating response that it did from defendant. It was not a mere request for consent to search. 
Cite as 329 Or App 479 (2023) 493

“[I]n Guayante, we held that an officer interrogated the 

defendant when the officer, without prompting from the 

defendant, made a statement using evidence to connect 

the defendant to the crime. 63 Or App at 215. In that case, 

we held that the officer interrogated the defendant when, 

while in the defendant’s house, he pointed to evidence that 

he found in the defendant’s house and stated, ‘Look, we 

already know you did it. Here is the stuff you took from 

him.’ Id. at 217-18. In contrast, in Bradbury, we held that 

an officer did not interrogate the defendant when, while in 

a police station and in response to an unprompted request 

from the defendant, the officer pointed to items that the 

defendant was accused of stealing when telling the defendant that he was being charged with burglary without 

also indicating how that evidence tied the defendant to the 

crime. 80 Or App at 615-17.”

Schmidtke, 290 Or App at 887. A further datapoint for such 

analysis is our decision in Schmidtke, where we held that 

when an officer told the defendant that the defendant had 

been identified in a surveillance video in the area of a crime 

moving property into a storage unit, that constituted interrogation. Id. at 888.

Turning back to the instant case, we conclude that 

the conduct of law enforcement was conduct likely to elicit 

some type of incriminating response from defendant (i.e., 

the location where defendant had hidden the Kindle Fire) 

and, therefore, constituted unlawful interrogation of defendant under Article I, section 12.

Here, defendant was mere feet from Dale and 

Duffitt when Dale provided a detailed description of how 

law enforcement had determined that defendant was using 

the internet, notwithstanding the conditions of his probation (albeit a description “mostly directed” to defendant’s 

mother).8

 Dale indicated that law enforcement had already 

obtained evidence from a third party, Comcast, showing 

internet access in the cul-de-sac tied to defendant’s accounts; 

that law enforcement had evidence of improper internet 

8 To the extent the state argues that defendant himself was already aware 

of the information that Dale conveyed to defendant’s mother and defendant while 

defendant was handcuffed on the stairs because most of the details of that explanation had been conveyed to him by law enforcement, we reject that argument. It 

is not supported by the record. 
494 State v. Gold

usage dating back to 2017; that law enforcement was aware 

defendant’s access was pervasive—that is, that through 

Wi-Fi passes defendant was able to access the internet for 

“49.37%” of 2019 and that law enforcement had taken the 

time to perform that calculation; that law enforcement knew 

the specific type of device defendant was using to access the 

internet, a Kindle Fire; and that law enforcement knew the 

month he had connected that Kindle Fire to his account.

Moreover, even after defendant interjected that he 

needed “a minute,” Dale approached defendant’s mother and 

continued to present incriminating evidence against defendant with defendant in the immediate vicinity—viz., showing defendant’s mother an email that defendant received 

at his “girlcave69” email account reflecting that he had 

accessed the internet that very morning. And Duffitt told 

defendant and his mother that if law enforcement had to 

serve the search warrant that they were applying for, they 

would “hit[] the door down” (notwithstanding that they were 

taking defendant—the suspect—into custody and intended 

to cover defendant’s door with evidence tape to make sure 

nothing in defendant’s room was tampered with).

That pressure Dale and Duffitt applied on defendant came shortly after Johnson, with Dale and defendant’s 

mother present, had repeatedly asked defendant to disclose 

the location of the Kindle Fire—namely, when Johnson 

stated to defendant while defendant was in his room:

•	 “Do you want to tell me where the device is?”;

•	 “So are there other devices? Where? Come on.”;

•	 “So this one [the PlayStation] is different you’ve had 

before, alright? So other devices.”;

•	 “[Defendant,] do you want to tell me where your other 

device is?”; and

•	 “[Defendant,] that’s why I asked you if you wanted to 

tell me where the other device is.”

Johnson also indicated to defendant’s mother, 

in front of defendant, that there was something “specific 

[defendant could] hand over”—viz., the “electronic device 

that accesses the internet.”
Cite as 329 Or App 479 (2023) 495

It is against that backdrop, with that understanding of what law enforcement was looking for and what would 

satisfy them, that we think the pressure law enforcement 

put on defendant through its presentation of the evidence 

against defendant was likely to elicit the incriminating 

response that it did from defendant—viz., the location where 

he had hidden the Kindle Fire.9

In reaching our conclusion, we are cognizant that 

disclosing the location of the Kindle Fire is not the only 

response that the conduct of law enforcement might have 

elicited from defendant in this case. That is, in response to 

Dale presenting the evidence that they had gathered against 

defendant and saying that they were going to try to obtain a 

search warrant, and to Duffitt saying that if they did obtain 

a search warrant they would “hit[] the door down,” defendant 

could have, for example, responded by consenting to a search 

of his room. That response, per Hatfield, 246 Or App at 744,

would not have been incriminatory under Article I, section 

12. But this case is not like Hatfield because in the face of 

defendant’s refusal to consent to a search, law enforcement 

did not merely continue to request consent to search and 

inform defendant that they would apply for a search warrant if he did not consent. Instead, after repeatedly asking 

defendant for the location of the device they were looking for, 

law enforcement presented the evidence they had collected 

against defendant. In essence, law enforcement told defendant what they wanted him to disclose—the location of the 

Kindle Fire—and, as in Guayante, said, “Look, we already 

know you did it. Here is the [evidence].” 63 Or App at 217.

The state notes that accessing the internet is, in 

itself, not a crime, and no law enforcement revealed evidence 

that “investigators knew what defendant was viewing.” But 

9 We do not understand the state to argue that defendant’s disclosure of the 

location of the Kindle Fire was not an incriminating response, but we pause to 

note that our conclusion that it was an incriminating response is in accord with 

courts in other jurisdictions that have considered similar issues. See, e.g., State v. 

Wethered, 110 Wash 2d 466, 471, 755 P2d 797, 800 (1988) (“Granting permission 

to search is consistent with innocence, whereas producing contraband from a 

hiding place is essentially an admission of guilt.”); United States v. Green, 272 

F3d 748, 750 (5th Cir 2001) (holding that the defendant’s compliance with an 

investigator’s request that the defendant “open the combination lock of a gun safe 

and locate other stored guns in his home” was “testimonial evidence obtained in 

violation of [the defendant’s] Fifth Amendment right to counsel”).
496 State v. Gold

in the context of this case, we are not persuaded that that 

matters. Defendant would have understood the nature of 

Dale’s investigation; the import of the device Dale sought; 

and how the evidence connected that device to him.

Additionally, although Dale’s description of the 

evidence against defendant was “mostly directed” toward 

defendant’s mother, not defendant, the fact that the conduct 

of law enforcement is “mostly directed” toward a third party, 

not the suspect, does not preclude such conduct from constituting unlawful interrogation when the suspect is present 

and can hear the conversation. Cf., e.g., Innis, 446 US at 

302-03 (considering whether officers’ conversation with each 

other in front of suspect constituted “interrogation” under 

the Fifth Amendment to the United States Constitution, but 

concluding that it did not, where the conversation was not 

“a lengthy harangue”); see also State v. Ward, 367 Or 188, 

197 n 7, 475 P3d 420 (2020) (“With respect to issues arising under Article I, section 12, we have sometimes looked 

for guidance to Fifth Amendment decisions of the United 

States Supreme Court.”). As noted, the question in this case 

is whether law enforcement’s “statements or conduct” was 

“likely to elicit some type of incriminating response” from 

defendant. Shevyakov, 311 Or App at 87 (internal quotation 

marks omitted). Here, we conclude that it was.

In reaching that conclusion, we are also cognizant 

that defendant ultimately told law enforcement the location 

of the Kindle Fire after his mother said to defendant, “I don’t 

want them going through my house” and “if they are going 

to find something through a search warrant.” Further, the 

trial court found that defendant’s decision to disclose the 

location of the Kindle Fire was made “to protect his mother” 

and “not have another search” of her home. Courts applying federal law “have held the dictates of Miranda ** * [to 

be] inapplicable to questioning of suspects in custody by private citizens”—for example, a suspect’s mother—when that 

private citizen is “acting on their own initiative.” See, e.g.,

Graham v. United States, 950 A2d 717, 732-33 (DC 2008) 

(collecting cases); Whitehead v. Cowan, 263 F3d 708, 719 

(7th Cir 2001) (“A police awareness that suspects sometimes 

confess after they speak with close friends or family does not 
Cite as 329 Or App 479 (2023) 497

mean this court should adopt a rule that encourages police 

to bar friends or family members from seeing a suspect.”). 

Consequently, here, if it were the case that defendant’s 

mother, in her capacity as a private citizen, separately, and 

without police involvement, encouraged defendant to disclose the location of the Kindle Fire and defendant thereafter did so, that set of facts might point toward a different 

result. But that set of facts is not the set of facts in this case.

In this case, defendant’s mother’s statements to 

defendant, “I don’t want them going through my house” 

and “if they are going to find something through a search 

warrant,” occurred during the course of Duffitt’s and Dale’s 

interactions with defendant and his mother. Even after

defendant’s mother told defendant, “if they are going to find 

something through a search,” and defendant said, “please, 

just give me a minute,” Dale continued to present defendant’s mother, with defendant in the immediate vicinity, 

with evidence of defendant’s internet usage, and in particular, his internet usage that very morning. Dale went as far 

as to use his phone to show defendant’s mother, in defendant’s presence, the evidence of defendant’s internet usage. 

Given that series of events, we think defendant’s decision 

to disclose the location of the Kindle Fire—when he stated, 

“I’m going to tell you where it is”—cannot be meaningfully 

disconnected from the conduct of law enforcement.10

In sum, the conduct of law enforcement in this 

case was “likely to elicit an incriminating response” from 

defendant and occurred after defendant invoked his right 

10 As recently noted by the Supreme Court, the protection “against police 

interrogation of a defendant in the absence of counsel—and the exclusion of evidence derived from such an interrogation—can apply not only when the interrogation is conducted directly by the police, but also when the questioning is by 

a private citizen acting as an agent of the police.” State v. Benton, 371 Or 311, 

319-20, 534 P3d 724 (2023) (so noting with respect to the Article I, section 11, 

protection against police interrogation of a defendant in the absence of counsel). 

In this case, we do not understand defendant’s mother to have been acting 

as an “agent of the police” as that phrase is used in Benton when she encouraged 

defendant to disclose the location of the tablet, nor does defendant argue she was 

acting as an “agent of the police.” 

But, in our view, in toto, the conduct of law enforcement vis-à-vis defendant 

and his mother (in defendant’s presence) was “likely to elicit an incriminating 

response” from defendant and a violation of defendant’s rights under Article I, 

section 12.
498 State v. Gold

to counsel under Article I, section 12. Therefore, we reverse 

defendant’s convictions and remand for further proceedings.

Reversed and remanded.

KAMINS, J., dissenting.

Defendant was caught red-handed using the internet in violation of his probation. He committed another probation violation when he declined to give his probation officer consent to search for the device that he used to access 

the internet. As a result, his probation officer decided to 

take defendant into custody and did so with the assistance 

of the police, who were planning to execute a search warrant at his mother’s house while defendant remained in jail. 

Defendant was out of options to avoid that outcome, but the 

police offered him one. Because police were both respectful of defendant’s autonomy and careful to ensure that his 

choice to grant consent to search was knowing and voluntary, I respectfully dissent.

Police had evidence that defendant (who was on 

probation and prohibited from using the internet) accessed 

the internet from a specific Kindle device in his mother’s 

house. When police went to defendant’s house, he invoked 

his right to counsel, meaning that the police could not interrogate him but could, in this case, seek consent to search. 

The officers told defendant about the specific device they 

were seeking and asked for consent to search for it, or for 

defendant to turn it over. Alternatively, they would obtain 

a search warrant for defendant’s mother’s house (a warrant 

that an officer was already preparing as part of a related 

investigation). The line between interrogation and seeking 

consent to search can be fuzzy. But, here, the police officers 

explained their lawful request to defendant, they told him 

more than once that he was not required to give his consent, 

and they also explained their next steps to him should he 

decline to consent. And defendant’s expressed rationale for 

his decision to consent—to save his mother “a little bit of 

pain”—was itself evidence that the decision was voluntary. 

In my view, there was no violation, but, even if there was, it 

was attenuated by the police’s subsequent actions.
Cite as 329 Or App 479 (2023) 499

The majority carefully analyzes the police actions in 

reaching the conclusion that the police’s request that defendant give them the device strayed into improper interrogation. They draw a finer line than I would. However, because 

any possible violation of defendant’s rights was minor, it 

was attenuated by police’s subsequent actions. Accordingly, 

I would affirm the trial court’s decision not to suppress the 

Kindle device.

At the outset, I disagree with the majority that the 

record does not allow us to address the question of attenuation. 329 Or App at 490 n 5. When affirming on a basis not 

addressed by the trial court, we first ask whether the party 

raised the argument below. If so, and “the argument is properly presented again on appeal and raises a question of law, 

we may simply resolve it[.]” Sherertz v. Brownstein Rask, 314 

Or App 331, 341, 498 P3d 850 (2021), rev den, 369 Or 338 

(2022). As explained below, despite the state not explicitly 

using the word “attenuation,” its arguments centered on 

the theory that police ensured that defendant’s provision of 

the Kindle1

 was not caused by the officers’ earlier conversations with defendant, rendering his consent to turn over 

the device voluntary. Even if, however, the state had not 

raised the theory below, we may address it under the rightfor-the-wrong-reason principles set forth in Outdoor Media 

Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 

P3d 180 (2001).

First, the state did raise attenuation. As the majority recognizes, the state argued in its written response to 

the motion to suppress that defendant’s consent was “an 

act of free will.” The state’s brief further contended that, 

just before defendant turned over the device, the police 

“reviewed his Miranda warnings with [him] again in his 

bedroom, told him he did not have to consent and reiterated 

they could apply for a warrant.” In its opening argument, 

the state picked up on that theme, observing that defendant 

understood consent, had been through this process before, 

and “was reminded of his Miranda rights, he was reminded 

of his right to consent in that instance.”

1 The state never sought to introduce any of defendant’s statements or the 

testimonial act of locating and producing the Kindle.
500 State v. Gold

In closing, the prosecutor focused on the circumstances that occurred after the alleged pressure from the 

police, observing that defendant is “given several minutes, 

okay. He’s taking that time. The officers then give him the 

ability to go outside and be away from his mother. That’s 

when he decides to consent.” Next the state argued that 

even after defendant’s decision to consent,

“the officers don’t just railroad over him and say ‘Where’s 

the device? Tell us where it is.’ No. They’re conscientious, 

they’re concerned. They’re saying ‘Here’s your Miranda

rights. Do you understand what those mean? Do you 

understand what consent means? Do you understand you 

don’t have to do this? Do you understand we’re not making 

threats and promises?’”

In other words, the prosecutor argued that after the conduct 

that the majority concludes amounted to a Miranda violation, officers took steps to ensure that defendant willingly 

consented—a classic attenuation argument.

The state raised the attenuation argument in briefing and in the hearing before the trial court. Because the 

state’s argument implicates the question of law raised below 

and on appeal, it is appropriate for us to consider it. See

Boyd v. Legacy Health, 318 Or App 87, 97, 507 P3d 715 (2022) 

(holding that the defendant’s arguments were properly 

before this court where the arguments were raised in the 

defendant’s briefing to the trial court and implicated questions of law); Sherertz, 314 Or App at 341 (holding that this 

court may resolve an alternative argument where the argument “was made in the trial court[,]” “is properly presented 

again on appeal[,] and raises a question of law”).

Even if the attenuation argument had not been 

raised below, however, it meets the “right for the wrong reason” exception as described in Outdoor Media Dimensions, 

331 Or at 659-60. Under those principles,

“[f]or us to affirm a trial court’s ruling on a basis other 

than that on which the court relied, (1) ‘the facts of record 

[must] be sufficient to support the alternative basis for 

affirmance’; (2) ‘the trial court’s ruling [must] be consistent with the view of the evidence under the alternative 

basis for affirmance’; and (3) ‘the record [must] materially 
Cite as 329 Or App 479 (2023) 501

be the same one that would have been developed had the 

prevailing party raised the alternative basis for affirmance 

below.’”

State v. Booth, 272 Or App 192, 199, 355 P3d 181 (2015), quoting Outdoor Media, 331 Or at 659-60. As explained below, 

the facts of the record are sufficient to support the alternative basis for affirmance. That basis is itself consistent 

with the trial court’s decision that defendant’s consent was 

voluntary: “I believe that his consent was voluntary. I think 

indeed there were—they did offer him several opportunities, 

explaining to him, making sure that it was a voluntary consent and that he understood his rights and he affirmatively 

stated he did and that he was consenting.” And the record 

is materially the same one that would have been developed 

had the state used the word “attenuation”—the attenuation 

argument relies on the officers’ colloquy about the meaning 

of consent, which is included in the record as a video recording, was discussed by the parties at the trial level, and was 

thoroughly evaluated by the trial court before it made its 

ruling. Cf State v. Escudero, 311 Or App 170, 174, 489 P3d 

569 (2021) (“Because the attenuation argument is raised for 

the first time on appeal, the trial court never engaged in the 

fact-specific inquiry on whether the state carried its burden 

of proving that [the] defendant’s consent was independent 

of, or only tenuously related to, the unlawful police conduct. 

Accordingly, because the record may have developed differently with respect to the exploitation analysis, we decline to 

consider the state’s alternative basis for affirmance.”).

Turning to the substance of the issue, “when a 

Miranda violation has occurred, a defendant’s voluntary 

consent can attenuate the prior violation if the consent was 

either not affected by or was only tenuously connected to 

a prior illegality.” State v. Williams, 320 Or App 705, 715, 

514 P3d 501 (2022) (internal quotation marks omitted). “To 

determine if a defendant’s voluntary consent was ‘sufficient 

to break the causal chain,’ we consider * * *: the nature of 

the violation, the character of the defendant’s consent, and 

the causal connection between the violation and the defendant’s consent.” Id. (citations omitted).
502 State v. Gold

First, considering whether the violation was flagrant, it was not. Although officers were precluded from 

interrogating defendant, there is no question that they were 

allowed to seek consent to search after defendant invoked 

his right to counsel. See State v. Hatfield, 246 Or App 736, 

744, 268 P3d 654 (2011) (Where the law provides that a 

criminal defendant’s refusal to consent cannot be admitted for the purpose of incriminating them, such as here, “a 

request for consent to search does not constitute interrogation under [the state or federal constitution].”); see also State 

v. Shevyakov, 311 Or App 82, 90, 489 P3d 580 (2021). There 

is also no question that officers could outline the next steps 

of the process, including stating that they were planning 

to seek a search warrant and identifying the evidence they 

would use in support of that effort. See Hatfield, 246 Or App 

at 746 (finding it permissible that police informed defendant 

that “they would apply for a search warrant if necessary”); 

State v. Schmidtke, 290 Or App 880, 886, 417 P3d 563 (2018) 

(“The officer’s statement merely informing [the] defendant 

of the criminal activity for which the officer was investigating and detaining [the] defendant was not designed to elicit 

an incriminatory response or a statement that, by its very 

nature, evidenced an investigatory purpose.”). The majority concludes that the police here crossed that fine line, 

but a fine line—not a flagrant violation—it is. See State v. 

Delong, 357 Or 365, 378, 350 P3d 433 (2015) (explaining that 

an Article I, section 12, violation “can hardly be characterized as egregious” where it did not involve “interrogation 

techniques designed to break down a suspect’s will” (citing 

Miranda v. Arizona, 384 US 436, 448-55, 86 S Ct 1602, 16 

L Ed 2d 694 (1966))).

Next, in weighing the character of the defendant’s 

consent, the officers’ statements thoroughly and effectively 

ensured that defendant understood consent and communicated that the choice was his. Officers engaged in the following conversation with defendant, well after the purported 

interrogation occurred:

“LIEUTENANT DUFFIT: I just want to make sure. 

I wasn’t here initially. When you were read your Miranda 

warning. What does the Miranda warning mean to you, or 

what’s it mean to you?
Cite as 329 Or App 479 (2023) 503

“DEFENDANT: I understand that I have a right to 

remain silent. I have a right to an attorney. But you’re getting a search warrant, and you’re going to tear my house 

apart so it doesn’t really matter if I remain silent or not.

“LIEUTENANT DUFFIT: Well, it does. You still have 

the right to remain silent. You have the right to talk to an 

attorney before you talk to us at all. Before you give consent for anything, okay? And, we, like he explained, we’d be 

applying for and asking a judge for a search warrant so if 

you consent it’s your consent alone, okay? You do not have 

to give consent. You do not have to do that. Do you understand that? I just want to make sure you understand you’re 

giving consent based on consent not because there’s any 

other promises or fear you have.

“DEFENDANT: I just fear that you’re going to emotionally destroy my mother by pulling our house apart 

again and that is what I’m basing this decision on.

“LIEUTENANT DUFFIT: Okay, what does consent 

mean to you? Do you understand what that means?

“DEFENDANT: Yes, I understand what consent 

means.

“LIEUTENANT DUFFIT: No, I think you’re a smart 

guy. And I’m not trying to offend you at all. But I want to 

make sure that you know what that means.

“DEFENDANT: I am choosing to tell you where this is 

to help my mother. Not for any reason for myself. Because I 

do not want my mother to suffer any more than she already 

is. I am consenting. I understand what that means.

“LIEUTENANT DUFFIT: Consenting to show us 

where this device is at?

“DEFENDANT: Yes.

“LIEUTENANT DUFFIT [to Detective Dale]: Any follow up?

“DETECTIVE DALE: No, just, again, we’re just making sure because you told us ‘no’ before, which is fine, and so 

in those circumstances we have to make it blatantly clear 

and obvious that it’s not because, you know, we’re coercing 

you, or making you promises of any kind.
504 State v. Gold

“DEFENDANT: You are not promising me anything. I 

merely wish to save my mother a little bit of pain.”

The officers informed defendant of the meaning of consent 

and confirmed that defendant understood and that he knew 

he did not need to consent. While defendant’s invitation to 

search was not unprompted, see Delong, 357 Or at 379-80, 

the character of defendant’s consent to produce the Kindle 

was knowing and voluntary.

Finally, we consider the causal connection between 

the violation and defendant’s consent. Here, the officers’ 

conversation with defendant during which they clearly 

informed him of his rights served as a significant intervening event that attenuated any prior illegality. See State v. 

Unger, 356 Or 59, n 12, 333 P3d 1009 (2014) (holding that 

police admonitions or warnings, “although not required, 

may be helpful when the state seeks to show that it did not 

exploit any police misconduct to obtain consent”); State v. 

Lorenzo, 356 Or 134, 144, 335 P3d 821 (2014) (“Such warnings [that an individual need not consent] would make it 

easier for reviewing courts to determine that, notwithstanding any prior illegality, the individual knew that he or she 

had a constitutional right to refuse consent—and that, if 

the individual gave consent, it was voluntary and not the 

product of exploitation.”). Moreover, the allegedly unlawful interrogation in this case did not yield the incriminating information of the location of the Kindle. To the extent 

that there was any doubt as to whether that consent was 

causally connected to the majority’s description of the violation—improperly pressuring defendant to provide incriminating information by “presenting the evidence that they 

had gathered against defendant”—defendant himself articulately explained that his consent to turn over the device 

was entirely due to his desire for officers to avoid obtaining 

a search warrant: “I just fear that you’re going to emotionally destroy my mother by pulling our house apart again 

and that is what I’m basing this decision on.” 329 Or App at 

495. As defendant explained, the pressure associated with 

officers describing the evidence against defendant did not 

cause him to crack and provide incriminating information; 

he merely hoped to save his mother “a little bit of pain.” 

In addition to saying that he understood his right not to 
Cite as 329 Or App 479 (2023) 505

consent, defendant’s explanatory response given in his own 

words was itself evidence that he had made a rational decision, voluntarily and knowingly, under the circumstances 

then present. Defendant assessed his options and made an 

informed decision based on criteria wholly unrelated to his 

own criminal exposure.

Because I believe that defendant’s consent was 

knowing and voluntary and that the taint, if any, was attenuated, I would affirm the trial court’s decision denying 

defendant’s motion to suppress.