## Facts

- Police investigated John Richard Davis for alleged long-term sexual abuse of his stepdaughter.
- A detective contacted Davis by phone about the allegations; Davis asked about a warrant and whether he needed a lawyer, and the detective said he was not “wanted” and could choose whether to hire counsel.
- Before any arrest or charging, Davis retained an attorney.
- Counsel sent police a letter stating he represented Davis, invoking Davis’s right to remain silent, and instructing police not to talk to Davis except through counsel, while offering to help arrange any interview.
- Months later, police suggested the alleged victim call Davis to elicit statements while police monitored or recorded the calls.
- Davis made incriminating statements during those calls.
- The trial court suppressed the statements under the Oregon Constitution (Art. I, §§ 11 and 12), and the Court of Appeals affirmed.

## Issues

1. Whether Article I, section 12 bars police from arranging or monitoring noncustodial conversations to elicit incriminating statements from a represented suspect after counsel invoked the right to remain silent.
2. Whether Article I, section 11 prohibits police from obtaining incriminating statements outside counsel’s presence when the suspect is represented but no formal criminal proceeding has begun.

## Decision

- The Oregon Supreme Court reversed and remanded.
- Article I, section 12 did not require suppression because Davis was not in custody and was not subjected to “compelling circumstances” when he made the statements.
- Counsel’s letter invoking silence did not create a standalone prohibition on police efforts to obtain statements outside custodial or similarly coercive settings.
- Article I, section 11 did not apply because the right to counsel attaches only after the start of criminal proceedings, which occurs no earlier than arrest; Davis had not been arrested or charged when the calls occurred.

## Legal Principles

- Article I, section 12 protects against compelled self-incrimination and is triggered by custodial interrogation or circumstances so coercive that a reasonable person would feel no real choice but to speak.
- Outside custody or “compelling circumstances,” police may seek and use voluntary statements without violating Article I, section 12, even if counsel previously asserted a right to remain silent.
- Article I, section 11’s right to counsel applies in “criminal prosecutions” and attaches only when criminal proceedings have begun, at the earliest upon arrest.
- A suspect’s retention of counsel, and police knowledge of representation, does not by itself start criminal proceedings or bar pre-arrest investigative techniques that obtain voluntary statements.

## Conclusion

Because Davis was not in custody or under compelling circumstances and criminal proceedings had not begun, the Oregon Supreme Court held that police monitoring of calls arranged through the alleged victim did not violate Article I, sections 12 or 11, and suppression of the statements was improper.


State v. Davis, 351 Or. 35 (Or. 2011)