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March 11, 2026 Get Citation Alerts Download PDF Add Note

State v. Burgess

Court of Appeals of Oregon

• Citations: 347 Or. App. 581
• Docket Number: A183361
• Judges: Egan

• Disposition: Convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed.

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.2K)

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Disposition

Convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed.

Combined Opinion

No. 177 March 11, 2026 581

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN DAVID BURGESS,
Defendant-Appellant.
Marion County Circuit Court
23CR29005; A183361

J. Channing Bennett, Judge.
Submitted November 13, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
EGAN, J.
Convictions on Counts 1 and 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.
582 State v. Burgess

EGAN, J.
In this criminal appeal, defendant seeks the
reversal of his two convictions for first-degree burglary,
ORS 164.225, assigning error to the denial of his motion
to suppress statements made to police during in-custody
interrogation.1 He makes two alternative arguments that
would provide an identical suppression remedy: (1) that he
unequivocally or equivocally invoked his right against self-
incrimination and sheriff’s deputies failed to properly honor
or clarify that invocation, and (2) that his statements were not
voluntary. Because we agree that, at minimum, defendant
equivocally invoked his right against self-incrimination and
that deputies improperly failed to either clarify that equiv-
ocal invocation or cease questioning altogether, we need not
reach defendant’s second argument. We reverse defendant’s
burglary convictions and remand for further proceedings;
we affirm his unchallenged conviction for unauthorized use
of a vehicle.
I. STANDARD OF REVIEW
When evaluating a trial court’s suppression ruling,
“[w]e defer to the factual findings of the trial court—includ-
ing as to what transpired during a custodial interrogation
and what a defendant did or did not say.” State v. Hadd, 323
Or App 691, 701, 523 P3d 1123, rev den, 371 Or 21 (2023).
But “[w]hether a defendant’s statement was an invocation
and, if an invocation, whether it was equivocal or unequivo-
cal are questions of law.” Id. at 705.
II. SUMMARY OF EVIDENCE
In June of 2023, deputy sheriffs arrested defen-
dant after he fled from them in a stolen Suburban SUV.
Thereafter, he was placed in an interview room, where he
spent the next eleven hours. During that time, deputies spo-
radically questioned him about three crimes under investi-
gation: the theft of a trailer, the theft of the Suburban (which,
defendant later admitted, involved a burglary to obtain the
owner’s keys), and a burglary involving the theft of firearms

1
Defendant was also convicted of unauthorized use of a vehicle, ORS 164.135,
but he does not seek the reversal of that conviction on appeal.
Cite as 347 Or App 581 (2026) 583

(the firearm burglary).2 Taken together, the questioning
itself lasted for about two hours.
Very early on, defendant confessed to stealing the
trailer and the Suburban, but he did not admit to enter-
ing the house of the Suburban’s owner to take the keys and
seemed particularly reluctant to even mention the firearm
burglary. The focus of this appeal is on a statement that
defendant made in the middle of his eleven-hour stay in the
interview room and in response to questions about the fire-
arm burglary: “I don’t think it’s smart for me to talk any-
more. It’s not going to help me. My fucking family is going to
get off’d.” The question is whether that statement amounted
to at least an equivocal invocation of his right against
self-incrimination.
To answer that question, we must evaluate that
statement in the context that it was made in, id. at 705-06,
and therefore, we summarize the interrogation leading up
to it in some detail. The entirety of defendant’s stay in the
interview room was recorded on video, and that video was
admitted as evidence at the suppression hearing. The fol-
lowing facts are largely taken from that recording.
Very soon after defendant arrived in the interroga-
tion room, two deputies released him from handcuffs and
provided Miranda warnings, which defendant said he under-
stood. The deputies then questioned him about the stolen
trailer. Defendant admitted that he had stolen it. Next, the
deputies asked him how he had gotten the Suburban, and
defendant admitted that he stole it about a week before from
the driveway of his friend’s father’s house using a key that
he already had. He denied entering the owner’s house.
A little less than two hours after that, Sergeant
Garret Olson, who had grown up with defendant and had
a positive relationship with him, started questioning defen-
dant. Defendant again admitted to stealing the Suburban.
Olson asked him if there was anything else that happened in
the last few days that he wanted to admit to (it is clear that
Olson was seeking information about the firearm burglary
2
The two burglary convictions that defendant challenges on appeal relate
to the burglary of the Suburban’s keys from the owner’s house (Count 2) and the
firearm burglary (Count 1).
584 State v. Burgess

but did not say so at the time). Defendant replied only that
he was trying to leave the state so he could start over.
Olson told defendant that they were investigating
quite a few things and asked if there was any reason that
defendant’s DNA would show up as involved in any other
crimes in recent days. Defendant said no, other than per-
haps the theft of the trailer he had previously admitted to.
Olson asked whether, aside from the trailer and Suburban
thefts, he had been involved in anything else the previous
week. Defendant said, “No.”
Olson told defendant that “honesty is your best play
in this whole thing, okay. This isn’t just about what hap-
pened tonight. That’s not the reason that I authorized them
to chase you in that car. There’s more going on than just
the trailer and the car.” But defendant replied, “I have no
idea what you’re getting at.” After a period of silence, defen-
dant added that there was a .22 pistol and some ammuni-
tion in the Suburban but that he did not know what else
Olson could be referring to. Defendant said he traded with
a person named “Dustin” for the pistol and that he did not
know whether the pistol was stolen. He also admitted that
he knew that he was not supposed to possess a gun.
About five and a half hours into his stay in the
interview room came the core interaction at issue on appeal.
Olson returned, this time accompanied by Detective Noe
Martinez. Olson said, “[T]here is way more that is going on
here than what you are telling me. * * * So I know that you
were involved in something that occurred in the last couple
of days, okay. * * * There is a gun in the car, okay. How many
of the guns in the car are going to be involved in the thing a
couple days ago?” It is again clear that Olson was referring
to the firearm burglary, which involved the theft of multiple
firearms—but that was left unstated. Defendant said the
.22 pistol, which he had referred to earlier, had come from
a guy named “Tuna.” Olson said that he had seen a video
and claimed to recognize defendant in it. Olson explained
that he knew other people were involved and that he did not
think that defendant was the “ringleader.” Olson noted the
change in defendant’s story—i.e., saying that he got it from
Cite as 347 Or App 581 (2026) 585

“Tuna” rather than “Dustin”—and implored defendant to be
honest.
Defendant sat silently. Olson continued to press
him for honesty and said, “Just tell me what happened.”
Defendant finally replied, “It is going to put me away for a
while.” Olson acknowledged that it might but said, “[I]t is
going to put you away possibly a lot longer if you continue
to lie about all of this stuff. You have an opportunity to be
honest and help yourself, and I am trying to give you that
opportunity right now.” Defendant replied, “I don’t know
what is going to help me and what is not going to help me,
you know?” Olson said that defendant was not helping him-
self by giving inconsistent stories and said, “I just want the
honest answer.” Detective Martinez emphasized that the
events were recent, so there was a chance they could get the
“stuff” back. But again, no one stated what the “stuff” was.
No one had yet mentioned explicitly that the conversation
they were having was about stolen firearms or a burglary.
After a pause, defendant said, “I don’t know who the
guy is. He hangs out around that area in the—he got the
information from—from a neighbor. All I know is where he
lived by and what vehicle he drives is all—is all I know about
him, and then the other guy took off on foot with all—all of
the stuff.” Olson asked him what he meant by “stuff,” and
defendant replied, “Stuff that came out of it.” Olson asked,
“Came out of what? You are being honest and I appreciate it,
but you can’t speak in generalities, okay?”
After 30 seconds of silence, defendant replied,
“Either way, I’m fucked so I am not sure how this is—this is
going to help me, you know. The State is—they are not going
to care either way.” Olson responded that “[t]hat is not nec-
essarily true,” because the deputies “have the opportunity to
get these things back and off the street, and it is a lot safer
for me and my guys if that happens.” Olson said that he
knew defendant did not “want me or any of the people that
work for me to get hurt,” to which, defendant asked, “What
about me and my family?” Olson replied,
“Well, you know that I can’t promise you anything, and I
am not going to promise you anything, but we can work
with you, and you can help us get this stuff back, and that
586 State v. Burgess

is the number one thing that you can do. You can try and
right some wrongs tonight, but you have got to start by tell-
ing me the full story of what happened and not speak in
generalities. So what are we talking about when you say
the stuff?”
After hesitating for a few seconds, defendant sighed
and replied, “I don’t think it is smart for me to talk any-
more.” Detective Martinez tried to interject, “See, the thing
is—.” But defendant continued, “It’s not going to help me. My
fucking family is going to get off’d.”
At this point, Martinez replied,
“The whole thing is, [defendant], if you think about it you
are kind of in—you are kind of in a good spot right now,
because the one person that ended up catching you this
morning is a guy who can vouch for you as someone who
has known you for 20 years is what he told me. He told me
you were a star athlete back in—back in the day. Is that
true? That’s what he remembers you as, you know.”
The deputies then went on to discuss defendant’s
past as an athlete and Olson’s ability to put in a good word
for him. Defendant then proceeded to express concerns
about the consequences to him and his family if he “rats”
on another person. The deputies tried to persuade him that
nothing bad happens to “rats,” despite frequent claims to
the contrary.
Defendant eventually made various statements that
were used against him at trial. Among other things, defen-
dant admitted that he participated in the firearm burglary
and provided details that led to the discovery of a surveil-
lance video that corroborated his confession. With regard
to the burglary connected to the Suburban theft, defendant
admitted that he entered his friend’s father’s house while
they were home and stole a key to the Suburban.
At the suppression hearing, Detective Martinez tes-
tified that he did not understand defendant’s statement—”I
don’t think it is smart for me to talk anymore. It’s not going
to help me. My fucking family is going to get off’d”—to be
an unequivocal or equivocal invocation of the right against
Cite as 347 Or App 581 (2026) 587

self-incrimination. Instead, he believed defendant was sim-
ply “concerned that his family [was] going to get killed.”
The trial court denied defendant’s motion to sup-
press, concluding that defendant’s statement was neither an
unequivocal or equivocal invocation:
“Viewing the totality of the context of the conversations at
the time, I don’t find that those were equivocal statements
at all, and they weren’t ambiguous.
“They were consistent with the conversation and the
appropriate follow up, or that he was worried that his fam-
ily or himself would face retribution if he cooperated.
“I can’t read anything in that where he was deciding not
to talk other than he was scared about talking, and then
continued to talk without further—without any pressure
from the officers to hey, no, you don’t want to stop talking
to us now. That just wasn’t present, and so I find for all of
those reasons the motion to suppress is denied.”
On appeal, defendant challenges that ruling,
reprising the argument made below, that, at a minimum, he
equivocally invoked his right to against self-incrimination
and that the deputies unconstitutionally continued their
interrogation. The state argues that defendant did not
invoke his right against self-incrimination or that, even if
he did equivocally invoke, the trial court properly found that
the deputies’ response to that equivocal invocation clarified
defendant’s intent. For the following reasons, we conclude
that the trial court erred.
III. ANALYSIS
Article I, section 12, of the Oregon Constitution
protects an individual’s right against compelled self-
incrimination. State v. Thomas, 343 Or App 560, 565, 578
P3d 1275 (2025). That right means that a person has the
right to remain silent in the face of police questioning. Id.
“[I]f a person in custody * * * unequivocally invokes” that
right “then police must honor that request and stop ques-
tioning.” Id. (internal quotation marks omitted). If a per-
son in custody “makes an ambiguous or equivocal invoca-
tion of their Miranda rights, ‘the police are required to ask
follow-up questions to clarify what the person meant before
588 State v. Burgess

proceeding with interrogation.’ ” Id. at 565-66 (quoting State
v. Avila-Nava, 356 Or 600, 609, 341 P3d 714 (2014)). If police
fail to properly respond to an unequivocal or equivocal invo-
cation of those rights, the remedy is suppression. Id. at 566.
“An invocation [of rights] is unequivocal when the
suspect expresses a clear intent to invoke his or her rights.”
State v. Roberts, 291 Or App 124, 132, 418 P3d 41 (2018). In
contrast, an equivocal invocation occurs when the suspect’s
statement or request “is subject to more than one reason-
able interpretation,” one of which is that they are invoking
their right to silence. State v. Scott, 317 Or App 777, 785, 505
P3d 1007 (2022). To determine if there was an invocation,
and whether it was equivocal or unequivocal, “we consider
a defendant’s words in the context of the totality of circum-
stances existing at the time of and preceding their utter-
ance, to determine whether a reasonable officer would have
understood that the defendant was invoking that right.”
Id. (internal quotation marks omitted). “The totality of cir-
cumstances may include the preceding words spoken by the
defendant and the interrogating officer, the demeanor, ges-
tures, and speech patterns of the defendant, the demeanor
and tone of the interrogating officer, and the point at which
the defendant allegedly invoked the right to remain silent.”
Id. (internal quotation marks omitted).
As a preliminary matter, contrary to the state’s alter-
native argument, we conclude that if defendant did invoke
his right against self-incrimination—whether unequivocally
or equivocally—the deputies’ response was not constitution-
ally proper. If it was unequivocal, they did not immediately
cease questioning as they would be required to do. And if it
was equivocal, their response was not constitutionally per-
missible. Far from clarifying whether defendant was intend-
ing to invoke his constitutional right or not, their immediate
response was aimed at persuading defendant to continue to
answer their questions—telling him, among other things,
that he was in an ideal situation because Olson could speak
on his behalf and attempting to assuage his concerns about
the risks of being a “rat.” Therefore, if defendant’s statement
can be understood as an unequivocal or equivocal invoca-
tion, the trial court necessarily erred in denying his motion
Cite as 347 Or App 581 (2026) 589

to suppress. For that reason, we need only decide here
whether defendant’s statement was at least equivocal.
Unequivocal invocations typically follow a pat-
tern. “[T]he defendant expresse[s] his or her intent by first
self-identifying as the actor (‘I’) and then by clearly stating
the desired action or view relating to the right in question
(won’t answer questions, don’t want to talk, need a law-
yer).” State v. Nichols, 361 Or 101, 110, 390 P3d 1001 (2017).
Examples of unequivocal invocations that follow that typical
pattern include:
• “I won’t answer any questions.” Avila-Nava, 356 Or at
603, 617.
• “I’m done, I don’t want to talk anymore.” State v.
McAnulty, 356 Or 432, 451, 456, 338 P3d 653 (2014), cert
den, 577 US 829 (2015).
• “I’m done talking.” State v. Schrepfer, 288 Or App 429,
436, 406 P3d 1098 (2017).
In Nichols, the Supreme Court held that, even though the
defendant deviated slightly from that specific pattern by
using the passive voice, he unequivocally invoked when, in
response to a question that went to the heart of the case, he
responded, “It’s not something I want to talk about.” 361 Or
at 104, 113.
By contrast, equivocal invocations do not follow a
predictable pattern and are more reliant on context. For
example, in State v. Rose, 296 Or App 99, 100, 437 P3d 1144
(2019), the defendant told officers, “I don’t have nothing to
say.” We acknowledged that that phrase was susceptible to
two meanings: (1) that the defendant simply had no answer
to the question he was asked, or (2) that he invoked his
right to silence. Id. at 105. The latter possibility relied on
the colloquial understanding of the defendant’s statement to
mean “I don’t have anything to say to you,” or “I don’t want
to answer you.” Id (emphasis in original). Even though the
defendant’s statements did not include “an explicit expres-
sion of reluctance or a desire to invoke his” constitutional
rights, we explained that the “defendant was not required to
precisely and literally articulate” his desire to invoke a con-
stitutional right. Id. at 106. Instead, the phrase was enough
590 State v. Burgess

to require officers to clarify the defendant’s meaning before
proceeding with their interrogation.
In State v. Harding, 221 Or App 294, 299, 189 P3d
1259, rev den, 345 Or 503 (2008), an officer encountered the
defendant, who provided a false name. After being arrested,
the defendant gave the officer his real name and then asked
why he had been arrested. Id. The officer responded that
detectives wanted to speak with him. Id. The defendant
responded, “Man, I thought I had warrants. I don’t want to
deal with these detectives.” Id. The trial court had concluded
that that statement was not an invocation because, in con-
text, the defendant’s statement was reasonably understood
only as an explanation for giving a false name—i.e., he gave
a false name because he thought he had warrants and did
not want to deal with detectives. Id. at 301-02. We disagreed
that, in context, that was the only reasonable interpretation.
Id. at 302. Instead, we held that the statement constituted
an equivocal invocation because a reasonable officer could
also interpret the defendant to mean that he simply did not
want to speak with detectives. Id.
A final example that is helpful in this case is State
v. Castillo, 295 Or App 121, 433 P3d 467 (2018), rev den,
364 Or 749 (2019). There, the statement was “I’m tired of
these interviews. I want to be with my family.” Id. at 124.
Based on context, we held that that statement was not an
invocation. Id. at 131. An officer told the defendant that he
seemed oddly devoid of emotion or interest in his child’s inju-
ries (which he was under investigation for causing), and the
defendant responded, “[A]nybody who knows me will vouch
for this, I am very reserved. Am I pissed? Absolutely. Am I
sad? Absolutely. I don’t know what to do at this point. I’m
tired of these interviews. I want to be with my family.” Id.
at 124. In context, we held that those statements could not
reasonably be interpreted as an invocation but, rather, as an
explanation for his muted demeanor. Id. at 129-31. But we
noted that, absent the unique context presented, the “defen-
dant’s statement that he was tired and wanted to be with
his family could be understood as an equivocal invocation of
his right to remain silent.” Id. at 129.
Cite as 347 Or App 581 (2026) 591

Returning to the present case, we start by look-
ing at defendant’s statement in isolation: “I don’t think it
is smart for me to talk anymore. It’s not going to help me.
My fucking family is going to get off’d.” On its face, one rea-
sonable interpretation of that statement is that defendant
wished to invoke his right to remain silent. As a colloquial
matter, “I don’t think it is smart for me to talk anymore,”
can be reasonably understood to mean “I don’t want to talk
anymore.” And, no matter how cooperative defendant had
been up to the point of his statement, the use of the word
“anymore” is important because it indicates the desire to
stop that cooperation going forward. It was not simply that
defendant was objecting to one particular question or sub-
ject, he was signaling a change in how he wished to respond
altogether.
The state argues that defendant’s reason for not
wanting to talk—i.e., that his “family is going to get off’d”—
clarified that defendant was not invoking his right against
self-incrimination, he was simply expressing a fear of repri-
sal. But even assuming that to be a reasonable interpretation
of defendant’s statement, it does not foreclose the possibility
that he was trying to invoke his constitutional right and,
therefore, only serves to render the invocation equivocal.
To the extent that the state argues that a person
cannot effectively invoke the right against self-incrimination
if their wish to cut off questioning is motivated by a fear of
reprisal rather than a fear of criminal prosecution, the state
presents no authority (and we are aware of none) to suggest
that the reason or motivation behind a defendant’s desire to
remain silent in the face of interrogation has any bearing on
whether or not an invocation has occurred under the Oregon
Constitution. Indeed, in Castillo, we said that—barring the
special circumstances at issue in that case—the statement
“I’m tired of these interviews. I want to be with my fam-
ily” could be an equivocal invocation. 295 Or App at 129.
It was immaterial that the defendant’s stated motivation
for stopping the interrogation was fatigue or wanting to be
with family. Certainly, the desire to invoke a constitutional
right can be motivated by any number of things, but the
legal validity of an invocation should not rise or fall based
592 State v. Burgess

upon the subjective reason motivating that invocation.3
Accordingly, based on defendant’s words alone, he appears,
at minimum, to have expressed an equivocal invocation of
his right against self-incrimination.
Looking at the broader context of defendant’s state-
ment only strengthens that conclusion. Prior to making the
statement, defendant had been cooperative and forthcom-
ing about his involvement in the theft of the trailer and the
Suburban, but he had refused to explicitly offer much of any-
thing in response to questions about the “something more”
that was going on or about the “stuff” that was taken. As
the deputies zeroed in on the subject of the firearm burglary
and began to press him for information, defendant began
to express doubts about whether answering their questions
was in his best interest. Defendant questioned whether
answering would “help” him because “the state would not
care either way.” He said things like, “It is going to put me
away for a while” and “ I don’t know what is going to help
me and what is not going to help me, you know?” Those
hesitations were plainly the byproduct of the higher stakes
involved as questioning focused on the firearm burglary.
Defendant’s precise statement, “I don’t think it is
smart for me to talk anymore. It’s not going to help me. My
fucking family is going to get off’d,” came in response to
Olson explicitly telling him to identify what he meant by
“stuff.” That is, it came at a point wherein defendant had to
decide whether he was going to disclose what the “stuff” was
and, by logical extension, what the “something more going
on here” entailed. In that context, “I don’t think it is smart
for me to talk anymore. It’s not going to help me,” reasonably
could be interpreted to mean that defendant had decided—
in answer to his own musing before about what would help

3
It may be that the stated reason for refusing to answer a given question may
be highly relevant in deciding whether an invocation was equivocal or unequiv-
ocal. For example, a defendant saying, “I don’t want to answer any more ques-
tions because I’m starving,” is susceptible to two reasonable interpretations—i.e.,
that the person is invoking their constitutional right because they are hungry or
that they simply want to take a break from answering questions to eat a meal.
But, again, that would still be an equivocal invocation—at least, absent circum-
stances establishing that the former interpretation was not a reasonable one in
context—and officers would be obligated to clarify the defendant’s intent before
resuming the interrogation.
Cite as 347 Or App 581 (2026) 593

him or not—that it would not help him to answer questions
“anymore” and, thus, expressed his wish to remain silent.
It may be that there were other reasonable inter-
pretations of defendant’s statement, but that possibility
makes it no less of an equivocal invocation. Therefore, we
hold that, at minimum, defendant equivocally invoked his
right against self-incrimination and that the deputies failed
to respond in a constitutionally permissible manner. The
trial court erred in denying the motion to suppress.
That leaves only the question of whether the error
was harmless. See State v. Davis, 336 Or 19, 28, 77 P3d
1111 (2003) (explaining that we will affirm despite error if
the error was harmless). For its part, the state makes no
effort to argue that any error would be harmless. Defendant
argues that his unlawfully obtained statements, and evi-
dence derived therefrom, constituted “significant” evidence
in both of his burglary convictions. We agree. After defen-
dant’s invocation, he confessed to entering his friend’s
father’s house to steal the key to the Suburban, and he con-
fessed to participating in the firearm burglary. Although
defendant had made multiple other admissions prior to his
invocation, he had not admitted to either of those burglar-
ies until after the invocation. The second confession also
led to the discovery of corroborative surveillance video. At
trial, the state specifically relied on both confessions and
the surveillance video in proving and arguing its case to the
jury. We cannot say that the admission of such unlawfully
obtained evidence was harmless.
Convictions on Counts 1 and 2 reversed and
remanded; remanded for resentencing; otherwise affirmed.