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March 11, 2026 Get Citation Alerts Download PDF Add Note

State v. Fleetwood

Court of Appeals of Oregon

• Citations: 347 Or. App. 594
• Docket Number: A178113
• Judges: Powers

• Disposition: Reversed and remanded.

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (36.8K)

• PDF

Disposition

Reversed and remanded.

Combined Opinion

594 March 11, 2026 No. 178

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA FLEETWOOD,
Defendant-Appellant.
Grant County Circuit Court
21CR28609; A178113

Robert S. Raschio, Judge.
Submitted January 22, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Powers, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
POWERS, P. J.
Reversed and remanded.
Cite as 347 Or App 594 (2026) 595

POWERS, P. J.
Defendant appeals from a judgment of conviction for
one count of felon in possession of a firearm, ORS 166.270,
and one count of disorderly conduct in the second degree,
ORS 166.025. In his first assignment of error, defendant
challenges the admission of statements that he made to an
officer while in compelling circumstances before he received
Miranda warnings. Defendant further argues that the trial
court erred in admitting statements that he made after receiv-
ing Miranda warnings because they were derived from the
earlier violation. We first conclude that the trial court erred
in admitting defendant’s pre-Miranda statements because
the state failed to prove that the questioning fell within any
exception to the Miranda requirement under either the Fifth
Amendment to the United States Constitution or Article I,
section 12, of the Oregon Constitution. However, we conclude
that the error was harmless given other evidence adduced
at trial. We further conclude that defendant’s post-Miranda
statements were derived from that earlier violation and were
thus inadmissible, and that that error was not harmless. In
his second assignment of error, defendant asserts that the
trial court erred in admitting evidence found during a war-
rantless search of his garage. We conclude that the trial court
did not err in admitting the evidence found during the search
of the garage because that search fell within the emergency
aid exception to the warrant requirement. Accordingly, we
reverse and remand.
I. BACKGROUND
We review whether a trial court erred in denying a
motion to suppress for legal error. State v. Ehly, 317 Or 66, 75,
854 P2d 421 (1993). We are bound by the trial court’s implicit
and explicit findings of historical fact as long as there is con-
stitutionally sufficient evidence in the record to support those
findings. Id. If the trial court did not make express findings
on all issues, we presume that the facts were decided in a
manner consistent with the court’s ultimate conclusion. Id.
We set forth the facts adduced during the suppression hear-
ing with that standard of review in mind.
Law enforcement responded to reports from defen-
dant’s neighbors that they had heard gunshots and a woman
596 State v. Fleetwood

screaming. Grant County Sheriff McKinley spoke with one
of the neighbors and learned that the gunshots came from
inside defendant’s home. McKinley obtained a phone num-
ber for the residence and spoke with defendant’s wife, who
came out of the house and initially told the officers that
she was in the house alone. Eventually, defendant’s wife
explained that defendant was in the house, and she got
defendant to come outside. When defendant came outside,
he was distraught, sobbing uncontrollably, and intoxicated.
McKinley put defendant in handcuffs because defendant’s
motions and statements made McKinley concerned for offi-
cer safety. No party disputes that defendant was in compel-
ling circumstances, and McKinley did not give defendant
Miranda warnings at that time.
McKinley testified that, while other officers
searched the house, defendant made unsolicited utter-
ances while in handcuffs. Defendant explained that he had
“punched the garage door,” which is what caused the loud
noises. He also told McKinley that he and his wife had been
in a fight because he was upset about something that she
had done. Defendant explained that he had been drinking
when he had arrived home from Idaho that day, and that he
had a criminal history in Idaho.
While McKinley was with defendant, other officers
searched the house. McKinley testified at the suppression
hearing that he knew that other people lived in the house
and that the other officers were checking the home to see
if there were other people that may have been injured or
armed. Durr, who also responded that day and was the
Chief of Police for the City of John Day at the time, testified
that when there is a report of shots being fired, the practice
is to clear the residence to see who is inside and that the
purpose of the search is to look for a person who is hiding
or injured. He explained that he had asked defendant’s wife
if they could go through the house and that she agreed.1
Defendant’s wife had also told the officers that they could

1
The parties dispute whether defendant’s wife’s consent to the search was
valid, and the trial court determined that it did not need to make that determi-
nation. We do not address that question because, as explained below, we conclude
that the emergency aid exception to the warrant requirement justified the offi-
cers’ warrantless search of the house.
Cite as 347 Or App 594 (2026) 597

not go into one of the rooms because there were dangerous
dogs in there. The officers performed a sweep of the house
and then asked defendant’s wife if she could move the dogs
to another room so that they could clear that room. Finally,
they asked defendant’s wife if they could search the garage,
and she said yes.
Although the record is unclear as to precisely how
the search unfolded after the officers entered the house,
the trial court appeared to find that the officers did an ini-
tial sweep of the house—including the garage—to search
for people who may have been armed or needed aid. Then
the officers asked defendant’s wife for her consent to enter
the garage a second time to perform a more detailed search.
While in the garage during the first search, the officers
found two firearms and bullet casings in plain view. During
the second, more detailed search, the officers found holes in
the walls and ceiling that at least one officer believed were
bullet holes.
After the search, the officers walked out of the house
announcing that they had found a firearm, and McKinley
arrested defendant and read him Miranda warnings.
McKinley described that defendant continued talking “for
hours” after being provided Miranda warnings. McKinley
further testified that he was aware that defendant may
have taken some pills, so he decided to take defendant to
the hospital. At some point either during the ride to the hos-
pital or at the hospital, defendant told McKinley that his
brother had altered the firearm, and when he tried to shoot
it, it would not work. While at the hospital, defendant and
McKinley further discussed that incident. The body camera
footage relating to defendant’s statements at the hospital
was admitted into evidence at trial.
In a pretrial motion to suppress, defendant argued
that the statements that he made before he received Miranda
warnings should be suppressed because Article I, section
12, of the Oregon Constitution does not have a public safety
exception to the Miranda requirement. Defendant further
contended that the post-Miranda statements should be sup-
pressed because they were tainted by the initial Miranda
violation. Finally, defendant asserted that the evidence
598 State v. Fleetwood

found in the home should be suppressed because the search
of defendant’s home was not pursuant to a warrant or any
exception to the warrant requirement. Following a hearing
on the suppression motion, the trial court made an oral rul-
ing denying defendant’s motion to suppress. We set forth the
trial court’s specific rulings regarding each assignment of
error below.
Ultimately, a jury found defendant guilty of felon in
possession of a firearm and disorderly conduct in the second
degree, and it acquitted him of unlawful use of a weapon.
This timely appeal follows.
II. ANALYSIS
A. Motion to Suppress Pre- and Post-Miranda Statements
1. Defendant’s pre-Miranda statements are not covered
by the public safety exception.
Defendant’s first assignment of error challenges the
trial court’s suppression ruling by arguing that his pre-Mi-
randa statements should have been suppressed. In denying
defendant’s motion to suppress, the court made the follow-
ing oral findings:
“The officers arrive on scene. Mrs. Fleetwood is called by
Sheriff McKinley. She steps out of the house. He requests
if there’s anybody else in the house. She denies initially
anybody else in the house.
“Then upon some further pressure, acknowledges that
[defendant] is in the house. * * * [S]he goes in and asks
[defendant] to come out. [Defendant] comes out. He’s imme-
diately placed into custody.
“The officers—and I’ll get into the questions of consent
and caretaking, warrant exceptions in a moment, but some
officers enter into the home. Sheriff McKinley stays with
[defendant]. During that time, while there’s a search going
on, it’s unclear to the court how much of the statements
were produced by questioning and how much were just the
ramblings of [defendant], but the statements that I articu-
lated for the record I would say were produced through the
officer contact and questioning.
“And so I would find that he was under compelling cir-
cumstances when he made the statements.
Cite as 347 Or App 594 (2026) 599

“The next question is, is Miranda warranted or required
at that point in time or is suppression required?
“It’s clear through State v. Jones[, 296 Or App 553,
439 P3d 485, rev den, 365 Or 557 (2019),] that the courts
of Oregon have reviewed with favorability New York v.
Quarles, 467 [US] 649, a 1984 case, that an individual can
be questioned during an initial contact while there’s exi-
gency for a public safety purpose, which would include offi-
cer safety, including public safety.
“The Court of Appeals has not answered, nor has the
Supreme Court answered, whether or not Article I, section
12 of the Oregon Constitution provides additional safe-
guards. Nothing in this record to me requires the court
to find that additional safeguards are required under
Article I, section 12 of the Oregon Constitution.
“Quarles is a longstanding decision by the United States
Supreme Court. It’s somewhat surprising that they haven’t
come to that question, but I would say under these circum-
stances, the exigency associated with the encounter, the
need to determine whether or not there were other individ-
uals involved, warranted the questioning of [defendant] at
the scene, and I will not suppress the statements made to
[McKinley] under the public safety exception to the Fifth
Amendment. And no other basis has been provided to the
court that I find would require a different result.
“So that would mean that subsequent statements made
after Miranda was given, which was basically the remain-
der of the encounter after the gun was discovered and
announced to Sergeant McKinley, would not be tainted by
the previous statements of [defendant]. And so I would not
grant the motion on that basis.”
On appeal, defendant contends that Oregon does not
have a public safety exception to the warrant requirement
and thus that all of defendant’s pre-Miranda statements
should have been suppressed. In the alternative, defendant
asserts that, even if Oregon has a public safety exception,
the state did not prove that McKinley’s questions were nec-
essary for safety because the state failed to make a record
as to what those questions were.
The state remonstrates that we should adopt
the federal public safety exception and that defendant’s
600 State v. Fleetwood

pre-Miranda statements are admissible under that excep-
tion. The state contends that defendant’s argument that the
state failed to make a sufficient record of the questions that
McKinley asked is unpreserved. Finally, the state asserts
that, even if the court erred in suppressing the statements,
any error was harmless because of how the case was liti-
gated, the jury’s verdict, and because the statements were
cumulative of other evidence adduced at trial.
Ultimately, we agree with the state’s argument
that any error in admitting the pre-Miranda statements
was harmless. Despite that conclusion, however, we must
still address whether a Miranda violation occurred in order
to examine whether defendant’s post-Miranda statements
were derived from an earlier violation. As explained below,
we conclude that, because the state did not offer evidence
of the questions that McKinley asked defendant, the state
failed to prove that McKinley’s questions were “necessary
to secure [McKinley’s] own safety or the safety of the pub-
lic” under the federal exception to the Fifth Amendment set
forth in New York v. Quarles, 467 US 649, 659, 104 S Ct
2626, 81 L Ed 2d 550 (1984).
We further conclude that the pre-Miranda ques-
tioning violated defendant’s rights under the Oregon
Constitution. Oregon courts have not decided whether
Article I, section 12, has a public safety exception to the
Miranda requirement. See State v. Jones, 296 Or App 553,
570, 439 P3d 485, rev den, 365 Or 557 (2019) (declining to
reach that question because any error in admitting the chal-
lenged statements was harmless). However, we conclude
that, assuming without deciding that Article I, section 12,
has a public safety exception, the trial court erred in admit-
ting the statements under both the state and federal consti-
tutions because the state failed to offer evidence of the ques-
tions that McKinley asked defendant before giving Miranda
warnings.
We first conclude that defendant preserved his
argument that the state did not make a sufficient record of
the questions. At the suppression hearing, defendant argued
that his pre-Miranda statements should be suppressed, and
the parties did not dispute that defendant was in compelling
Cite as 347 Or App 594 (2026) 601

circumstances at the time of questioning. See State v. Love-
Faust, 309 Or App 734, 740, 483 P3d 45, adh’d to as modified
on recons, 311 Or App 756, 489 P3d 149 (2021) (explaining
that compelling circumstances “exist when, viewing the
totality of the circumstances, a reasonable person in the
defendant’s position would feel compelled to answer an offi-
cer’s questions”). Thus, the state was put on notice that it
had to prove that the statements were admissible under the
federal and state constitutions. The state has the burden to
prove that pre-Miranda statements are admissible, it was
the state’s responsibility to make a sufficient record, and it
did not meet that burden.
Next, we turn to whether defendant’s pre-Miranda
statements fell within the federal public safety exception
and conclude that they did not. Under the Fifth Amendment,
“[n]o person * * * shall be compelled in any criminal case to
be a witness against himself.” If a person is in custody and
subjected to interrogation, the person must be informed in
“clear and unequivocal terms” that the person has the right,
among other rights, “to remain silent.” Miranda v. Arizona,
384 US 436, 467-68, 86 S Ct 1602, 16 L Ed 2d 694 (1966).
Those Miranda warnings are thus “prerequisites to the
admissibility of any statement made by a defendant.” Id. at
476.
In Quarles, the Supreme Court of the United States
determined that there is a “public safety” exception to the
requirement that Miranda warnings be given before a
defendant’s statements may be admitted into evidence. 467
US at 655. That exception allows law enforcement to ques-
tion people who are in custody or compelling circumstances
before the person is given Miranda warnings if the ques-
tions are “necessary to secure their own safety or the safety
of the public” and not “designed solely to elicit testimonial
evidence from a suspect.” Id. at 659.
In Quarles, the police were investigating an incident
where the defendant had allegedly entered a supermarket
carrying a firearm. Id. at 651-52. The officers found a person
who matched the description, and the defendant ran toward
the back of the store. Id. at 652. One officer held the defen-
dant at gunpoint and ordered him to stop and put his hands
602 State v. Fleetwood

over his head. Id. The officer discovered that the defendant
was wearing a shoulder holster that was empty, and after
handcuffing him, asked the defendant where the firearm
was and the defendant pointed to where it was located. Id.
In the subsequent prosecution, the trial court excluded evi-
dence of the firearm and the defendant’s statement about
the location of the firearm because the officer had not given
him the required Miranda warnings. Id.
Ultimately, the Supreme Court of the United States
concluded that the officer’s question about the location of the
firearm was necessary “to insure that further danger to the
public did not result from the concealment of the gun in a
public area.” Id. at 657. The Court reasoned that the offi-
cer “asked only the question necessary to locate the miss-
ing gun before advising [the defendant] of his rights. It was
only after securing the loaded revolver and giving the warn-
ings that he continued with investigatory questions about
the ownership and place of purchase of the gun.” Id. at 659.
Thus, that case demonstrates that, for a court to examine
whether pre-Miranda questioning satisfies the public safety
exception, it is important for a court to know what questions
law enforcement asked to determine if the questions were
necessary to ensure safety. See also United States v. Carrillo,
16 F3d 1046, 1049-50 (9th Cir 1994) (concluding that the
officer’s question as to whether the defendant had any drugs
or needles on his person was a “narrowly tailored question”
and thus “was a reasonable attempt by a police officer to
insure his personal safety in the midst of a search”); United
States v. Brady, 819 F2d 884, 888 (9th Cir 1987), cert den,
484 US 1068 (1988) (concluding that, although there was
conflicting testimony as to what the officer and the defen-
dant said, the questions “arose from [the officer’s] concern
with public safety, his desire to obtain control of what could
be a dangerous situation. They were not designed to obtain
evidence of a crime.”).
Here, there is no evidence in the record as to the
specific questions that McKinley asked defendant. The
state’s written response to the motion to suppress outlined
some specific questions; however, a prosecutor’s representa-
tions in a written response to a motion to suppress are not
Cite as 347 Or App 594 (2026) 603

evidence. McKinley’s testimony at the suppression hearing
did not provide evidence of those questions either.
McKinley testified at the suppression hearing that
he had put defendant in handcuffs because of officer-safety
concerns, that defendant made “unsolicited utterances,” and
he testified about the specifics of defendant’s statements.
McKinley further testified about his motivation for ques-
tioning defendant:
“I’m still trying to figure out what’s going on, I’m still try-
ing to find out if there were other individuals in the home,
all of that. So [defendant is] talking to me while other offi-
cers are making contact with Ms. Fleetwood at that point
and entering the home and checking it for other individu-
als or other persons that may have been injured, armed, or
otherwise their safety had been threatened.”
Although McKinley testified that his motivation for talking
to defendant before giving him Miranda warnings was to fig-
ure out what was going on and if other individuals were still
in the house, at no point did he describe what specific ques-
tions he asked defendant that would have achieved his goal.
Indeed, the trial court concluded that, under the circum-
stances of this case, including “the exigency associated with
the encounter, the need to determine whether or not there
were other individuals involved, warranted the questioning
of [defendant] at the scene.” However, the court explained
that “it’s unclear to the court how much of the statements
were produced by questioning and how much were just the
ramblings of” defendant. Thus, the court’s comments spe-
cifically acknowledged that it did not know what questions
McKinley asked defendant.
Without providing any evidence of the questions
that McKinley asked defendant, the state could not meet
its burden to demonstrate that McKinley’s questions were
“necessary to secure [the officer’s] own safety or the safety of
the public.” See Quarles, 467 US at 657 (concluding that the
“need for answers to questions in a situation posing a threat
to the public safety outweighs the need for the prophylac-
tic rule protecting the Fifth Amendment’s privilege against
self-incrimination”). Furthermore, for the same reasons, we
cannot conclude that the pre-Miranda questioning satisfied
604 State v. Fleetwood

a public safety exception under Article I, section 12, assum-
ing there is one. As a result, the trial court erred in admit-
ting the pre-Miranda statements under both the state and
federal constitutions.
2. Admission of defendant’s pre-Miranda statements
was harmless.
Because we conclude that the pre-Miranda ques-
tioning violated defendant’s rights under both the state and
federal constitutions, we analyze whether the statements
were harmless under both harmless error tests. Ultimately,
we conclude that the admission of the statements was harm-
less. Under Article VII (Amended), section 3, of the Oregon
Constitution, we must affirm a judgment despite an error
if there is “little likelihood that the error affected the ver-
dict.” State v. Davis, 336 Or 19, 30-32, 77 P3d 1111 (2003). To
determine whether erroneously admitted evidence affected
the verdict, “we consider the nature of the evidence in the
context of the trial as a whole.” State v. Simon, 294 Or App
840, 849, 433 P3d 385 (2018), rev den, 365 Or 502 (2019).
In considering harmlessness, we “review all portions of the
record, not just the evidence most favorable to the state.” Id.
Moreover, “[a]mong other factors, we consider whether the
evidence was cumulative of other evidence admitted without
objection, which includes assessing any differences in the
quality of the erroneously admitted or excluded evidence as
compared to the other evidence on the same issue.” Id.
Similarly, a federal constitutional error is harmless,
such that the conviction will be upheld, “if the reviewing
court may confidently say, on the whole record, that the con-
stitutional error was harmless beyond a reasonable doubt.”
Delaware v. Van Arsdall, 475 US 673, 681, 106 S Ct 1431,
89 L Ed 2d 674 (1986) (describing the test announced in
Chapman v. California, 386 US 18, 24, 87 S Ct 824, 17 L Ed
2d 705 (1967)). In reviewing the whole record to determine
whether an error was harmless, we consider “the impor-
tance of the [improperly admitted evidence] in the prosecu-
tion’s case, whether the [evidence] was cumulative, the pres-
ence or absence of evidence corroborating or contradicting
the [improperly admitted evidence] on material points, the
extent of cross-examination otherwise permitted, and, of
Cite as 347 Or App 594 (2026) 605

course, the overall strength of the prosecution’s case.” Id. at
684.
The pre-Miranda statements that the state offered
at trial were that defendant had imbibed a large amount of
whiskey, had just come back from Idaho, and had punched
the garage door.2 We consider each one in turn.
The court’s admission of the statement that defen-
dant had drunk a large amount of whiskey was harmless
because it was cumulative of other, unchallenged evidence
admitted at trial. Defendant’s wife testified that defendant
had been drinking and had taken pills, and an officer testi-
fied that defendant appeared intoxicated when they arrived
on the scene. The court’s admission of defendant’s state-
ment that he had just come back from Idaho was harmless
because it was not relevant to any element of the charges.
Finally, the court’s admission of defendant’s statement that
he had punched the garage door was harmless because the
defense theory at trial was that defendant had not shot
a firearm and the loud noise heard by the neighbors was
defendant punching a metal garage door. Defendant’s state-
ment supported that theory, as did his wife’s testimony that
the loud noise was a result of defendant slamming the metal
garage door. The jury acquitted defendant of unlawful use
of a weapon, and thus the jury was likely persuaded by that
defense theory. Therefore, the court’s error in admitting
defendant’s pre-Miranda statements at trial was harmless
under both the state and federal constitutions.
3. Defendant’s post-Miranda Statements
We turn to defendant’s challenge to the admission
of his post-Miranda statements. As an initial matter, and
as the parties’ arguments suggest, the record is sufficiently
developed for us to determine whether the post-Miranda
statements derived from the earlier violation, which is
an issue that the trial court did not reach because it had
determined that there was no prior Miranda violation. As
explained below, we conclude that defendant’s post-Miranda
statements were derived from the earlier Miranda violation
2
Defendant also told McKinley that he had a criminal history in Idaho; how-
ever, the state did not offer that statement at trial. Accordingly, we do not con-
sider that statement in our harmlessness analysis.
606 State v. Fleetwood

and should have been suppressed. On appeal, defendant
focuses on one of his post-Miranda statements to argue that
it was a product of the earlier Miranda violation and thus
that the trial court erred in failing to suppress his state-
ments. Specifically, defendant contends that the state failed
to prove that his admission that he had tried to kill himself
with a firearm was not the product of the earlier Miranda
violation. Defendant maintains that there was no break in
McKinley’s custody of defendant between the initial viola-
tion through the trip to the hospital. Moreover, defendant
asserts that he was extremely intoxicated, and thus there is
no reason to assume that the belated warning would have
dissipated the effects of the earlier violation, given that he
was too intoxicated to be deterred from speaking.
For its part, the state first contends that the
encounter that occurred after receiving the warnings was
much longer than the brief encounter that occurred before
it. Second, the state asserts that there was a break in ques-
tioning—McKinley arrested defendant, then Mirandized
him and took him to the hospital—and most of defendant’s
statements occurred at the hospital. Third, the state remon-
strates that McKinley did not point out to defendant that
he had already made incriminating disclosures. Finally, the
state argues that, like in State v. Vondehn, 348 Or 462, 485-
86, 236 P3d 691 (2010), the questioning before the Miranda
warnings was conversational and short in duration, and the
circumstances were far less coercive here because defendant
was not sitting in the back of a patrol car.
In their briefs, both parties rely solely on attenua-
tion cases under state law and do not advance any argument
under the federal constitution. In addition, as explained
below, we conclude that the post-Miranda statements were
derived from the earlier Miranda violation under the state
constitution. Therefore, because defendant does not advance
a federal constitutional argument and because we conclude
that the trial court erred in admitting the statements under
the Oregon constitution, we need not address the federal
constitutional analysis.
Article I, section 12, of the Oregon Constitution
provides that “[n]o person shall be * * * compelled in any
Cite as 347 Or App 594 (2026) 607

criminal prosecution to testify against himself.” To protect
that constitutional right, police must give Miranda warn-
ings before questioning a person who is in custody or com-
pelling circumstances. State v. Jarnagin, 351 Or 703, 713,
277 P3d 535 (2012). When law enforcement fails to give
Miranda warnings, we suppress not only the statements
that a suspect makes in response to questioning but also
evidence that “derives from or is a product of that constitu-
tional violation.” Id. To determine whether evidence derives
from a prior Miranda violation, we consider the totality of
the circumstances, including:
“[T]he 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.”
Id. at 716. If law enforcement ultimately gives belated
Miranda warnings, “the relevant inquiry must be whether
the belated warnings are effective and accomplish the pur-
pose for which they are intended.” Vondehn, 348 Or at 480.
The state must establish that the belated warnings were
effective. Id. at 481.
We conclude that the state did not offer sufficient
evidence for the trial court to conclude that the statements
were not derived from the earlier Miranda violation. The
state argues that defendant’s encounter with McKinley
before he was Mirandized was shorter than the post-
Miranda conversation. The evidence of the length of the
initial encounter was McKinley’s testimony that it “was
maybe five to seven minutes. I couldn’t say exactly. It would
be in my video.” Moreover, McKinley testified that, after
providing Miranda warnings, defendant continued talking
“for hours.” Although there is evidence that the amount
of time of the post-Miranda encounter was much longer
than the pre-Miranda questioning, that does not outweigh
that there was no break in the questioning. The evidence
shows that, after McKinley arrested defendant and read
him his Miranda warnings, defendant continued talking on
the scene, on the way to the hospital, and at the hospital.
608 State v. Fleetwood

Although the statement offered at trial occurred at the hos-
pital, it appears that defendant had also made statements
about his brother’s firearm earlier in the police car on the
drive to the hospital.
In sum, the record demonstrates that defendant was
talking to McKinley nonstop starting from when McKinley
initially put defendant in handcuffs, during the car ride
to the hospital, and throughout the visit to the hospital.
Although we agree with the state’s argument that McKinley
did not point out to defendant that he had already made
incriminating disclosures and that the circumstances were
likely less coercive than in Vondehn, the state did not carry
its burden to prove that defendant’s statements following
the Miranda warnings were not derived from McKinley’s
pre-Miranda questioning. Over the entire period of time,
McKinley was the only officer asking defendant questions,
and there is no evidence in the record that the types of
questions McKinley asked were different in nature before
and after giving Miranda warnings. Cf. Jarnagin, 351 Or
at 723 (determining that Miranda warnings were effective
and reasoning, in part, that there was a substantial break
in time between the sets of questions where the defendant
was at home with a friend, and the person who asked the
subsequent questions was a different person). Given the cir-
cumstances here, there was no break or subsequent event
that could have “dissipated the taint of the earlier violation.”
Therefore, we conclude that the state failed to carry its bur-
den to prove that the post-Miranda statements were not
derived from the prior violation, and the trial court erred in
failing to suppress them.
Having concluded that the trial court erred and
should have suppressed the post-Miranda statements, we
turn to harmlessness. The state contends that, even if the
trial court erred, the admission of the post-Miranda state-
ments was harmless. See Davis, 336 Or at 30-32 (describ-
ing the standard for assessing harmless error). We disagree
with the state’s contention.
Defendant’s statement that his brother had altered
the firearm and that it would not fire when defendant tried
to shoot it was relevant to whether defendant possessed and
Cite as 347 Or App 594 (2026) 609

discharged a firearm. Although the jury acquitted defendant
of unlawful use of a weapon, those statements were also rel-
evant to the felon in possession charge. Moreover, although
defendant testified at trial that he carried the firearm from
the car to the garage that day—thus potentially admitting
to moving the firearm if the jury believed that testimony—
those statements are not cumulative of each other and are
qualitatively different. Furthermore, during closing argu-
ment, the state relied on both of those factual circumstances
when discussing the felon in possession charge. Simon, 294
Or App at 849 (explaining that when assessing harmless-
ness, we “consider how the case was tried and the extent
to which the disputed evidence was or was not emphasized
by the parties and central to their theories of the case”).
Specifically, the state pointed to evidence that, while in the
hospital, defendant “talked about [how] he wanted to take
his life and that he had a gun that his brother removed a
bullet from the chamber or he would be dead today.” The
state further noted that, “while [defendant was] on the
stand, he tells you, that gun, the 9-millimeter, belongs to his
brother. It was in the car, and he carried it from the car to
the house.” Each statement describes a different situation in
which defendant may have possessed the firearm, and we do
not know what evidence led the jury to find defendant guilty
of the felon in possession charge. Therefore, admission of
defendant’s post-Miranda statements was not harmless.
B. Motion to Suppress Evidence Derived from the Search of
the House
Defendant’s second assignment of error challenges
the trial court’s denial of defendant’s motion to suppress evi-
dence derived from the search of his home.3 The court con-
cluded that the search of the house and garage was justified
by the emergency aid exception:
“Turning to the entrance into the home, clearly a war-
rantless search. It is, per se, illegal under the Oregon
3
In his first assignment of error, defendant also challenges the physical evi-
dence found during the search of the house, arguing that it was derived from the
Miranda violation. As explained below, however, because we conclude that the
officers entered the house pursuant to the emergency aid exception to the war-
rant requirement, we need not address whether the officers’ entry into the house
was derived from the Miranda violation.
610 State v. Fleetwood

Constitution to search a home without a valid exception to
the warrant requirement. Here the state is approaching
the question in two ways. Third-party consent to search
the home and under a caretaking exception.
“So let me start with the caretaking exception and
then plain view. The officers have an active shooting cir-
cumstance. [Defendant’s counsel] asks the court to assume
something that was clearly not being assumed by the offi-
cers at the time, that [defendant] was the shooter and he
was the only shooter in the home.
“They have no reason to make that particular deter-
mination at the time. They’re not aware of what the
whole circumstances are. They have somebody who—and
Ms. Fleetwood who has been immediately untruthful with
them, and then they are not sure what is happening inside
that home. They know that there are other people who have
lived in that home, including a mother-in-law which they
had—So they went through, searched the home under a
caretaking exception, did a sweep of the property.
“They do a sweep of the property, get into the garage,
and find in the garage in plain view a—I think a 9-mil-
limeter weapon, a firearm, pistol, with the magazine out,
with two live rounds on the ground, along with at least one,
maybe two empty shell casings in plain view.
“Community caretaking exception does not allow
for anything that is searched for, in other words, moved
around or otherwise exposed through the searching of
spaces, to be seized or to have actual—be allowed within a
court proceeding.
“However, the Court of Appeals—the Supreme Court
has found that if, during the caretaking sweep of a home,
they see something in plain view, they are able to seize that
if they believe that it is evidence of a crime.
“And they had here a shots-fired call. Shooting a firearm
inside the city limits is against the law, and so they were
authorized to seize the gun under a community caretaking
plain view exception to the warrant requirement under all
the exigency of the circumstances. That does not lead the
court to any kind of consent question.”
Defendant then asked the trial court to make find-
ings on the issue of consent because defendant argued that
Cite as 347 Or App 594 (2026) 611

the testimony from Durr was that the examination of the
holes in the walls that the officers thought were bullet holes
was part of the second, more detailed search of the home.
The court then made further findings and concluded that
defendant’s wife gave consent to enter the garage:
“I don’t know that the initial consent and entry of the
house is really all that particularly relevant. The next
question was whether or not she gave consent to search
the garage. They’re already inside the home and they ask
for consent to search the garage area, after they’d already
entered the home, and she was not at that point under
gunpoint.
“The officers were inside her home. They are allowing
her to transition through different spaces with them as
they’re searching, and they’re using a courtesy that I’m not
particularly familiar with at all times in these types of cir-
cumstances, asking her if they can go into next rooms.
“Then she does, in fact, consent, without any kind of
restraint or without being under any kind of threat or
any—she’s not under gunpoint or anything like that, she
consents to allow them to search the garage.
“* * * * *
“In fact, Sergeant Hutchison went further and asked
her if she had authority to allow them to be in the garage,
and she said she went in there two to three times a day,
and ultimately she did have the authority to allow them to
search, and she agreed to that search.
“So at that point that there’s any issues with consent,
which would be the searching the second time inside the
home, Mrs. Fleetwood clearly was not in a compelling cir-
cumstance. She was standing, in [exhibit] 102, freely, with
her arms crossed, talking to the officers. Not under any
kind of arrest. No officer standing near her in any way try-
ing to compel her to get them to allow the search.
“So I would find that her consent to the search of the
garage, under all the circumstances, was voluntarily given,
and lawful, and the state had every right to—had every
authority to rely on that third-party consent to search that
room.
“So I will deny the defense’s motion to suppress[.]”
612 State v. Fleetwood

1. Emergency aid exception We first address whether the officers’ initial sweep of the house was constitutional under the emergency aid exception. On appeal, defendant contends that the record reflects two distinct searches: an initial search where the police cleared the main part of the house and a second search of the garage, to which defendant’s wife purportedly gave separate, specific consent. It was during that second search, defendant argues, that the officers discovered the firearms, shell casings, and bullet holes. However, the trial court’s findings do not reflect defendant’s view of the record. The trial court found that the officers found in the garage a firearm in plain view “with two live rounds on the ground, along with at least one, maybe two empty shell cas- ings in plain view.” The court then discussed the officers “searching the second time inside the home,” which involved a more detailed search of the garage where the officers found bullet holes in the walls. Therefore, as we understand it, defendant is referencing that second more detailed search of the garage when he contends that the officers performed a second search without a valid warrant and without consent from defendant’s wife. We begin with defendant’s arguments regarding the initial sweep of the home. Defendant asserts that the emergency aid exception did not justify the initial sweep of the house nor the subsequent entry into the garage.4 Specifically, defendant contends that the police did not have sufficient reason to believe that any particular person was harmed or at risk of being harmed because, with defendant and his wife already accounted for, there was insufficient evidence of an identifiable victim or perpetrator. The state remonstrates that the reports of a woman screaming fol- lowed by gunshots and the officers’ knowledge that other people lived in the house justified the officers’ entry into the house and garage under the emergency aid exception. We agree with the state’s argument.

4
Defendant acknowledges that the trial court ruled that the searches were
justified under a “caretaking” exception to the warrant requirement but assumes
that the court meant to refer to the emergency aid exception. We agree with defen-
dant’s assessment and analyze the situation under the emergency aid exception.
Cite as 347 Or App 594 (2026) 613

Under Article I, section 9, of the Oregon Constitution,
a warrantless search is per se unreasonable unless the search
falls within one of the few specifically established and well-
delineated exceptions to the warrant requirement.5 State v.
Fessenden / Dicke, 355 Or 759, 764, 333 P3d 278 (2014). The
state has the burden to prove that the circumstances sat-
isfied one of the exceptions. State v. Galitzen, 345 Or App
57, 61, 581 P3d 1019 (2025). The “emergency aid exception”
justifies a warrantless search when “police officers have an
objectively reasonable belief, based on articulable facts, that
a warrantless entry is necessary to either render immedi-
ate aid to persons, or to assist persons who have suffered,
or who are imminently threatened with suffering, serious
physical injury or harm.” State v. Baker, 350 Or 641, 649,
260 P3d 476 (2011) (footnote omitted). There must be a “reli-
able, objective indicia of a potential victim of a dangerous
circumstance or a potential perpetrator of a dangerous act,”
otherwise the risk of harm is purely speculative. State v.
Burdick, 209 Or App 575, 581-82, 149 P3d 190 (2006). As we
have explained:
“If officers believe only that a search is necessary to dis-
cover if there is a person in the location who needs immedi-
ate aid, rather than that the search was necessary because
a person who is seriously injured needs their aid, officers
are acting with a ‘purely speculative’ belief that there is
a ‘risk and gravity of harm’ requiring their immediate
action. A speculative belief that someone might require aid
does not justify a warrantless search under the emergency
aid exception.”
State v. Hamilton, 285 Or App 315, 323, 397 P3d 61 (2017)
(citation omitted).
Defendant argues that this case is similar to State v.
Fredricks, 238 Or App 349, 358-59, 243 P3d 97 (2010), where
we concluded that, because the officers heard an argument
but did not hear any sounds consistent with physical injury
and the officers determined that all possible victims had not
been physically harmed, the emergency aid exception did
5
Although defendant cites to a single federal case in a footnote in his open-
ing brief, he does not adequately develop a federal argument. Accordingly, we
do not address it. See State v. Amaya, 336 Or 616, 634 n 6, 89 P3d 1163 (2004)
(declining to address undeveloped federal constitutional arguments).
614 State v. Fleetwood

not justify the officers’ entry into the hotel room. Defendant
contends that here, like the situation in Fredricks, although
it was theoretically possible that another person was con-
cealed in the house, there was no evidence that an identifi-
able victim or perpetrator would be discovered by entering
the home.
We disagree with defendant’s argument that the
officers’ belief that there was an armed person in the house
or someone in need of aid in the house was speculative. Here,
responding to a report of gunshots and a woman screaming,
the officers determined that the noises came from defen-
dant’s residence. Although defendant and his wife ulti-
mately came out of the house, the officers knew that other
people lived in the house, and thus it was not speculative
for the officers to believe that someone else was in the house
who was either armed or injured. Moreover, defendant’s wife
was initially untruthful with the officers when she claimed
that defendant was not in the home, so it was reasonable for
them not to believe her when she said no one else was there.
Specifically, one officer testified,
“I felt that given the situation, with the woman scream-
ing, followed immediately by three gunshots, the decep-
tiveness of her telling us that there was nobody else in the
house, and then we come to find out there was somebody
else in the house, I honestly kind of expected to find some-
body that was either injured or killed in the house.”
In short, there is sufficient evidence that the officers subjec-
tively believed that there was another person in the house
who could have been armed or who needed immediate aid.
Moreover, because the officers knew that other people lived
in the home and defendant’s wife had initially been dishon-
est about who was in the home, their belief was objectively
reasonable and supported by evidence in the record. Because
we conclude that the officers entered the house under a valid
exception to the warrant requirement, any evidence that
was found in plain view during the search was admissible
at trial. See, e.g., State v. James, 336 Or App 55, 66, 560 P3d
747 (2024), rev den, 373 Or 282 (2025) (explaining that the
“plain-view” doctrine “authorizes seizure of evidence under
circumstances where the police are in a place where they
Cite as 347 Or App 594 (2026) 615

are entitled to be when they observe the evidence in plain
view and the incriminating character of the evidence is
immediately apparent” (internal quotation marks omitted)).
Therefore, the trial court did not err in admitting evidence
of the firearms and bullet casings that were found in plain
view during the initial sweep of defendant’s garage.
2. Consent to the search of the garage
The next question is whether defendant’s wife gave
consent for the officers to enter the garage a second time to
perform a more detailed search, which is when they found
what they believed to be bullet holes in the walls. As an
initial matter, defendant does not set forth an argument as
to whether his wife’s consent to the search of the garage
was valid. The focus of defendant’s argument on appeal is
that his wife’s consent as to the initial entry was invalid and
that the emergency aid exception did not apply, and thus
the first and second searches of the garage were a product
of the initial unconstitutional sweep. Specifically, defendant
argues, “Even if defendant’s wife voluntarily consented
to the garage search, the garage search and the evidence
found there were the products of the initial sweep, and no
exception to the warrant requirement justified that search.”
(Emphasis omitted.) According to defendant, because there
was no valid warrant exception for the initial sweep, his
wife’s consent provides no basis for affirmance on appeal.
Defendant asks us to remand to the trial court to rule on
the voluntariness of his wife’s consent to the initial sweep.
As explained above, however, we conclude that the officers’
initial sweep of the home was pursuant to a valid exception
to the warrant requirement, and thus the second search of
the garage was not a product of an initial unconstitutional
search. Given that defendant does not advance an argu-
ment on appeal as to whether his wife’s consent to enter the
garage a second time was voluntary, we need not reach that
question on appeal.
Reversed and remanded.