It must show that the statement was given "without inducement through fear or promises, direct or implied." State v. Mendacino, 288 Or. 231, 235, 603 P.2d 1376 (1980) (Citation omitted). In evaluating voluntariness, we must look at the totality of the circumstances.
Our inquiry here is whether there was a sufficient break in the stream of events between that inadmissible statement and the written confession to insulate the latter statement from the effect of what went before. Clewis v. Texas, 386 U.S. 707, 87 S Ct 1338, 18 L Ed 2d 423 (1967); State v. Mendacino, 288 Or. 231, 603 P.2d 1376 (1979). In State v. Hibdon, 57 Or. App. 509, 645 P.2d 580 (1982), police also were in possession of an arrest warrant when they went to the defendant's girlfriend's house to arrest him.
Robeson did not engage "in repeated efforts to wear down [defendant's] resistance." See State v. Foster, 288 Or 649, 655-56, 607 P2d 173 (1980) (considering that situation) (internal quotation marks omitted); State v. Mendacino, 288 Or 231, 238, 603 P2d 1376 (1980) (same). The trial court found that only two to three minutes elapsed between the time that Robeson stopped defendant and defendant's invitation to search his car.
See State v. Moore/Coen, 349 Or. 371, 385, 245 P.3d 101 (2010) (testimonial evidence); Vondehn, 348 Or. at 476, 236 P.3d 691 (physical evidence). This court has looked to the totality of the circumstances in determining whether physical or testimonial evidence derives from or is the product of an earlier Miranda violation. State v. Foster, 288 Or. 649, 655, 607 P.2d 173 (1980); State v. Mendacino, 288 Or. 231, 238, 603 P.2d 1376 (1979); see Vondehn, 348 Or. at 482, 236 P.3d 691 (directing courts to consider “all relevant circumstances” in deciding whether belated Miranda warnings were effective in ensuring a knowing and voluntary waiver of rights). Among other things, the court has considered the nature of the violation, the amount of time between the violation and any later statements, whether the suspect remained in custody before making any later statements, subsequent events that may have dissipated the taint of the earlier violation, and the use that the state has made of the unwarned statements.
This admonition should not have come as any surprise to police officers in this state. In State v. Mendacino, 288 Or. 231, 603 P.2d 1376 (1979), "[d]espite the defendant's repeated statements that he did not want to talk and that he wanted an attorney, the detectives continued the interrogation and elicited a confession from the defendant." 288 Or at 233.
" In State v. Mendacino, 288 Or. 231, 235-36, 603 P.2d 1376 (1979), this court said: "In Oregon, a confession is initially deemed involuntary.
We must therefore ascertain whether the police actions that had occurred on April 11 affected defendant's waiver on April 12. In State v. Mendacino, 288 Or. 231, 603 P.2d 1376 (1979), we held that coercive police actions that had produced the defendant's first two inadmissible confessions were not effectively removed so that as a matter of law his third confession was involuntary. The defendant's first two confessions resulted when the police interrogated the defendant after he had asserted his rights to remain silent and to see an attorney.
See id. at 717, 277 P.3d 535. The officers’ conduct did not, for example, involve "advis[ing the] defendant of his Miranda rights and then proceed[ing] to question him despite his repeated requests for counsel," id . (citing State v. Mendacino , 288 Or. 231, 238, 603 P.2d 1376 (1979) ), or entail erroneously telling the defendant that he was not yet entitled to an attorney and then subjecting him to "rigorously structured and ‘focused’ * * * interrogation" that "elicited patently inculpatory responses" despite an unequivocal invocation of Miranda rights, State v. Koch , 267 Or. App. 322, 332, 341 P.3d 112 (2014). Although the interrogation continued for several minutes after defendant invoked his right to remain silent, the officers did not use flagrantly coercive tactics in an effort to elicit an incriminating response.
The state concedes that the court erred in denying suppression of the statements made to the police prior to and immediately after the child was advised of his rights. Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694 (1963); State v. Mendacino, 288 Or. 231, 603 P.2d 1376 (1979); State v. Paz, 31 Or. App. 851, 572 P.2d 1036 (1977), rev den 282 Or. 189 (1978). The remaining question is whether the confession to his father is evidence that should have been suppressed.
Similarly, in State v. Mendacino , we explained that the 72-hour gap between an unlawful interrogation and a later interrogation—preceded by fresh Miranda warnings—was insufficient to dissipate harm of the earlier violation because the defendant remained in jail and did not consult with an attorney between the interrogations. 288 Or. 231, 238, 603 P.2d 1376 (1979). Here, the state has offered no reason to conclude that the days of incarceration did anything to minimize the harm from the earlier violation.