State v. Gold

329 Or.App. 479

541 P.3d 247

STATE of Oregon, Plaintiff-Respondent,

v.Conor Austin GOLD, Defendant-Appellant.

A177144

Court of Appeals of Oregon.

Argued and Submitted August 30, 2023

December 13, 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.

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 P.3d 65, rev. den. , 365 Or. 194, 451 P.3d 239 (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.

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 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 their 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."

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 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...