State v. Avila-Nava

Under Article I, section 12, of the Oregon Constitution, police must cease custodial interrogation when a criminal suspect. unequivocally invokes his or her right against self-incrimination. State v. McAnulty, 356 Or 432, 455, 338 P3d 653 (2014); State v. Davis, 350 Or 440, 459, 256 P3d 1075 (2011). This case raises the broader question of what standard applies to determine whether an unequivocal invocation of the right against self-incrimination was made and the particular question of whether, in the context in which they were communicated, defendant’s words, “I won’t answer any questions,” constituted an unequivocal invocation of that right. The trial court found, in light of contextual indicia on which it relied, that defendant’s words did not amount to an unequivocal invocation and denied his motion to suppress. The Court of Appeals reversed that ruling and remanded to the trial court. State v. Avila-Nava, 257 Or App 364, 306 P3d 752 (2013). Having allowed review, we affirm the Court of Appeals decision and remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The pertinent facts are undisputed. Hillsboro police officers, who were investigating a robbery for which defendant was a wanted suspect, stopped a vehicle that defendant was driving. Defendant was arrested, handcuffed, and taken into police custody. At the scene of arrest, an officer read the Miranda warnings to him from a prepared card that had the warnings, in Spanish, printed on it.1 The officer read the warnings in Spanish because defendant had indicated that he did not speak English. After the officer read the warnings, defendant stated that he understood his rights. Officers then transported defendant to the Hillsboro Police Department.

*603At the police station, Detectives Gánete and Hahn interviewed defendant. Gánete spoke Spanish throughout his interaction with defendant. Gánete testified that he had no trouble understanding defendant and that defendant did not appear to have difficulty understanding his questions. Gánete testified that he read the Miranda warnings to defendant, from a prepared card that stated (translated from Spanish):

“It is my [duty] to inform you before you make a declaration that you have the right to remain silent.

“Anything you say may be used against you in a court of law or a judicial tribunal.

“You have the right to speak to an attorney and to be [sic][2] present during the interrogation.

“If you do not have the funds to contract an attorney, the court will assign one to you without cost.”

Gánete then asked defendant whether he understood those rights. Defendant replied: “I have a question. Do I have to answer your questions?” Gánete responded that defendant “did not have to answer any questions or talk to me if he chose to.” Defendant then asked Gánete “why did mister call the police?” In response, Gánete told defendant that “we needed to get past first his understanding of the Miranda warning before we can actually begin to speak with each other.” Gánete then stated that defendant had to decide whether to talk to him or not, and Gánete read the Miranda warning card again. Gánete “took each right line by line and asked if [defendant] understood each right, and he understood the rights with the exception of * * * where he questioned anything you say may be used against you in a court of law.” After Gánete read that warning, defendant said “I don’t understand what this means.” Gánete asked “what is it you don’t understand,” and defendant replied, “anything I say can be used against me.” Gánete said, “that’s correct. Anything you say can be used against you.” At that point, defendant stated: “I won’t answer any questions.”

*604Gánete then asked if defendant meant that he did not want to talk to Gánete and that he wanted him to leave. Defendant responded, “No, I can’t talk to you if I don’t understand what this right means because you’re telling me I have the right to remain silent. I don’t understand what this right means.” At that point, Gánete again read the warning that “anything you say may be used against you.” As he was doing so, defendant interrupted him and said, “pardon. I’m not trying to be disrespectful. How can I say this?” Defendant paused before saying, “[a]nything I say can be used against me. It’s like I’m lying?” Gánete characterized that question as “more like [defendant] was doubtful of understanding what it meant and interpreting it as ‘well, it’s like I’m lying then.’ ” Gánete proceeded to reiterate the warnings, because “we were kind of hung up in this— on this right * * * because we were at this point where we weren’t making any progress of understanding; so I thought that, ‘Okay. We’ll come back to that right afterwards and see if he would understand then.’”

After repeating the Miranda warnings, Gánete asked defendant if he understood them, with the exception of the warning that anything that he said could be used against him. Defendant replied: “That’s exactly what I don’t understand.” Gánete

“then asked [defendant] if — how many — how many years of schooling did he have, and he mentioned he had up to sixth grade. I asked if he knew how to read Spanish, and he said, ‘yes, a little bit.’ And then I suggested, I says, ‘If I show you the Miranda rights card, are you able to read and understand?’ And he said, ‘yes, I can.’”

Gánete then gave the Miranda card to defendant, who read the warnings out loud. After defendant finished reading the card, Gánete said:

“‘It’s my duty to inform you before you make a declaration, you have the right to remain silent.’ [Defendant] pauses and asks us a question, ‘You can — you can just ask me questions then?’, and I replied, ‘If I tell — if you tell me that you wish to remain silent, I can’t question you.’ [Defendant] then said, ‘Now, I understand.’

*605“I then explained to [defendant] we needed to establish if he wants to speak with me or not, which is a lot different than if he agrees to speak with me.

“However, during my questioning, he may choose to answer or not answer specific questions, and that was fine with me.

“Finally, I asked [defendant] ‘Do you understand your rights?’ And he said ‘Yes,’ and then I asked, ‘Do you understand the Miranda■ warning card you read?’ He, [defendant] said, ‘Yes,’ and I asked ‘Do you want to speak with me freely?’ [Defendant] said, ‘Yes.’”

Before Gánete concluded his testimony, the trial court engaged him in the following colloquy:

“ [The Court]: I’m a little confused. He said at one point that I won’t answer any questions, and then it seems pretty unequivocal. Why did you continue?

“[Gánete]: Because I asked at one point ‘are you saying you don’t want to talk to me at all? You just want me to go away?’ And his expression was, ‘no I can’t talk to you if I don’t understand what this right means because you’re telling me I have the right to remain silent. I don’t understand what this means.’

“So, your honor, I guess to clarify this, I — my understanding is that he wasn’t understanding that right, and I made every effort to explain to him what that meant and this was our going back and forth until he finally said, ‘Oh,

I see what you’re telling me. Okay. Under that condition, then I want to talk to you. I understand what that right means.’

“[The Court]: So when he said to you, T won’t answer any questions,’ that was phrased to you as a not a statement of — did you receive that as a statement where he was unequivocally exercising his rights not to talk to you, or was that a question he was pondering to you?

“[Gánete]: I interpreted it as a question that he was pondering to me from lack of understanding. I didn’t accept that as unequivocally, he’s saying, T don’t want to talk to you.’”

Defendant’s counsel argued at the suppression hearing that, when defendant said “I won’t answer any *606questions,” Gánete was required to terminate the interrogation, because those words have the same effect as “I choose to remain silent” and “I won’t talk to you.” The prosecutor responded that defendant had not unequivocally invoked his right against self-incrimination and that Ganete’s continued questioning was meant to ensure that defendant understood his rights. Because defendant indicated that he understood those rights before he made incriminating statements, the prosecutor reasoned, defendant had validly waived his right against self-incrimination.

The trial court denied defendant’s motion to suppress. The court explained:

“[T]he court’s responsibility is to look at the totality of the facts surrounding the Miranda issue, and when you first- — -so there was this discussion that was going on between Officer Gánete and the defendant, and they started getting hung up on this one right that anything you say can be used against you in a court and wasn’t sure what that was all about. And then the defendant says, T won’t answer any questions,’ and, you know, when you first hear that, you think that it’s a unequivocal exercise of his Miranda rights, and it should be shut down at that point.

“But Officer Gánete took great effort to try to explain to the court that it — it wasn’t that he was exercising his rights. He wasn’t saying T won’t answer any questions.’ It was that he didn’t know if he wasn’t supposed to answer any questions or not, and so there’s this — he was- — -it was apparent that the defendant was confused about what his rights were, and that’s later cleared up before defendant says, ‘Okay. Now I understand.’

“And so I at first thought it was actually an unequivocal exercise of his Miranda rights, but it was clear that that was — is not the case even though he did say, T won’t answer any questions.’ But it was posed more of a — as a quandary. The defendant didn’t quite understand what was going on at the time.

“I’m supposed to look at the totality of the facts to try and understand this to make sure that the statements were voluntary, first of all, and it’s real clear that there were no threats. There wasn’t any coercion. There were no promises, no trickery, no fraud, no intoxication. He was *607confused initially, which is the biggest hurdle that they have — that the police have at the time to allow the statements for him to be voluntary. He’s got to understand these obviously at least the Miranda rights and so forth, but they seem to be — they work through it, and the officer spent a lot of time with the defendant making sure he understood his Miranda rights. I don’t believe under the totality of the facts that I heard that he was trying to manipulate the defendant in the situation.

“So then the next question is — so I do think the statements that he made subsequently were voluntary. I haven’t heard the statements, but I’m assuming that they will be. The question is then did the defendant waive his Miranda rights or was this comment, ‘won’t answer any questions,’ an unequivocal exercise of his Miranda rights, and that’s where I say I think the — in the totality of the facts that it’s not unequivocal exercise of rights. He’s trying to understand what his rights are, and that’s what we want the police to do when someone’s not quite understanding it to explain it in detail so that they — so when it’s all over with, and the person understands his rights, he can then say, ‘No, I don’t want to talk to you. I won’t answer any questions. Or yeah, I’ll talk to you.’ And, apparently, after he understood his rights, he did decide to talk to the police.

“So from the totality of the circumstances, I do find that he voluntarily and knowingly waived his Miranda rights. It’s a bit different than we typically see, but obviously, there was a Spanish speaking issue here that they had to work through in terms of the Miranda rights. And obviously, the Miranda rights aren’t really clearly interpreted from English into Spanish anyway, and so you can see where there’s a process that has to take place where these rights are explained in detail to someone who doesn’t speak English to be able to make sure that they clearly understand, and I do think he clearly understood what his Miranda rights were. So I will allow the statements to come in."

Defendant testified at trial, and the state impeached him by pointing to inconsistencies between his trial testimony and his statements during interrogation. As the case was tried, an assessment of defendant’s credibility was essential to the jury’s consideration of the charges against him. The jury convicted defendant, and this appeal followed.

*608ANALYSIS

Article I, section 12, of the Oregon Constitution provides that “[n]o person shall be *** compelled in any criminal prosecution to testify against himself.” To protect a person’s right against compelled self-incrimination under that provision, this court has held that, before questioning, the police must give Miranda warnings to a person who is in “full custody” or in circumstances that “create a setting which judges would and officers should recognize to be ‘compelling.’” State v. Jarnagin, 351 Or 703, 713, 277 P3d 535 (2012); State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990). When an officer fails to give the requisite warnings, a court must suppress not only the statements that a suspect makes in direct response to unwarned questioning but also evidence that derives from or is a product of that constitutional violation. State v. Vondehn, 348 Or 462, 476, 236 P3d 691 (2010).

In Vondehn, this court examined the basis for the requirement that police inform people in custody of their right against self-incrimination under Article I, section 12. The court explained that,

“[b]ecause a custodial interrogation is inherently compelling, and to ensure the validity of a waiver of the right against self-incrimination, Article I, section 12, requires that the police inform a person subjected to custodial interrogation that he or she has a right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution. Article I, section 12, requires those Miranda warnings to ensure that a person’s waiver is knowing as well as voluntary. If the police conduct a custodial interrogation without first obtaining a knowing and voluntary waiver of the suspect’s rights, then they violate the suspect’s Article I, section 12, rights.”

348 Or at 474; see also State v. Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006) (“To protect a person’s right against compelled self-incrimination under [Article I, section 12], this court has held that, before questioning, police must give Miranda warnings to a person who is in ‘full custody’ or in circumstances that ‘create a setting which judges would and officers should recognize to be ‘compelling.’”).

*609As noted, under Article I, section 12, police must cease interrogation when a person in police custody unequivocally invokes the right against self-incrimination. McAnulty, 356 Or at 455. The reason for that requirement is that, “[w]hen the police honor [a defendant’s rights under Article I, section 12], if [the] defendant chooses to assert them, the coercive atmosphere of police interrogation is to some degree dispelled.” State v. Sparklin, 296 Or 85, 89, 672 P2d 1182 (1983). When the defendant makes an ambiguous or equivocal invocation of rights under Article I, section 12, however, the police are required to ask follow-up questions to clarify what the person meant before proceeding with interrogation. State v. Charboneau, 323 Or 38, 54, 913 P2d 308 (1996).3 In determining whether the defendant unequivocally invoked his or her rights, “interpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous.” Connecticut v. Barrett, 479 US 523, 529, 107 S Ct 828, 93 L Ed 2d 920 (1987); accord State v. Kell, 303 Or 89, 99, 734 P2d 334 (1987).4

What transpired during a custodial interrogation, including what a defendant said or did not say, is a question of fact. We are bound by the trial court’s findings of fact if they are supported by evidence in the record, although “we assess anew whether th[ose] facts suffice to meet constitutional standards.” State v. James, 339 Or 476, 481, 123 P3d 251 (2005). That is, whether a defendant’s statements amounted to an unequivocal invocation of the right against self-incrimination, an equivocal invocation, or no invocation at all, is a question of law. State v. Terry, 333 Or 163, 172, 37 P3d 157 (2001), cert den, 536 US 910 (2002).

As the trial court in this case acknowledged, defendant’s statement, “I won’t answer any questions” appeared on its face to be an unequivocal assertion of his right against *610self-incrimination. The question is whether the trial court nevertheless properly determined that the statement was equivocal. Because it is central to our analysis, we first consider an issue that this court previously has not directly addressed under Article I, section 12, namely, whether in determining if a suspect in police custody has unequivocally invoked his or her right against self-incrimination, a court can consider a suspect’s post-request responses to further police questions.

This court must independently analyze the meaning, scope, and requirements of Article I, section 12, just like any other provision of the Oregon Constitution. See, e.g., State v. Caraher, 293 Or 741, 748, 653 P2d 942 (1982) (stating principle). When construing a provision of the original Oregon Constitution (and Article I, section 12, is such a provision), we examine the text in its context, the historical circumstances of the adoption of the provision, and the case law that has construed it. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). Insofar as the issue at hand is concerned, the text in context and historical circumstances of the adoption of Article I, section 12, do not assist our analysis. However, our previous decisions construing Article I, section 12, do provide some guidance.

In State v. Smith, 310 Or 1, 791 P2d 836 (1990), the defendant argued that he had invoked his rights against self-incrimination under Article I, section 12, and under the Fifth Amendment, when, during a police interview, he said, “I have nothing to say” in response to a detective’s hypothetical description of how he might have killed his wife. Based on the context in which the remark was made, the trial court concluded that the defendant had not invoked his right against self-incrimination, but, instead, merely had exercised his right to answer some questions and not to answer others. See Kell, 303 Or at 99 (“Defendant was entitled to pick and choose what he wished to talk about.”). This court agreed with the trial court’s conclusion, because it found “‘nothing which suggests that detectives persisted in repeated efforts to wear down [the defendant’s] resistance and make him change his mind.’” Smith, 310 Or at 10 (quoting State v. Foster, 288 Or 649, 656, 607 P2d 173 *611(1980)).5 In so concluding, the court analyzed the defendant’s words in the context in which they were uttered, including the preceding circumstances.

Later, in Charboneau, a case involving the asserted invocation of the right to counsel under Article I, section 12,6 the defendant sought to exclude inculpatory statements that he made after he asked, “Will I have an opportunity to call an attorney tonight?” 323 Or at 52. This court concluded that any request for counsel was equivocal:

“In the totality of the circumstances, defendant’s question simply does not constitute, as a matter of law, an unequivocal request for a lawyer. For example: (1) Defendant did not say that he wished to speak with a lawyer at the time; rather, he asked about the future. (2) Even regarding the future, defendant’s statement did not say that he necessarily would want to speak with a lawyer; he asked only if he would have an opportunity to speak with a lawyer later. Although no single characteristic is controlling, defendant’s statement, when considered in its entirety, readily suggests that he was not invoking his right to speak to a lawyer at that time but might do so later.”

Id. at 55 (emphases added). Thus, like in Smith, the court in Charboneau analyzed the defendant’s words in the context in which they were uttered, this time expressly considering “the totality of circumstances.”

Most recently, in McAnulty, we held that the defendant twice had invoked her right to remain silent when she “unambiguously communicated that she no longer desired to talk with detectives.” 356 Or at 456. We also concluded, based on the context of her preceding interactions with the officers, that the defendant later invoked that right a third time by stating, “I don’t want to no more, please, I don’t want to.” Id. at 452. The state had maintained that the defendant, *612in her third invocation, merely had expressed a desire not to look at a photograph of the murder victim. We disagreed. We noted that, before the defendant’s invocation, one of the officers had acknowledged that he was aware that the defendant did not want to look at anything and assured the defendant that he was “not going to ask [her] to do that.” Id. He instead told the defendant that he still needed to ask her about the victim’s injuries. When the defendant then stated, “I don’t want to no more, please, I don’t want to,” we concluded — based on her words in light of the preceding circumstances — that she “effectively communicated her intent to stop the conversation.” Id. at 456.

The foregoing decisions, although not expressly applying it, are consistent with the standard that, in determining whether an unequivocal invocation of the right against self-incrimination was made, a court considers the defendant’s words, in light of the totality of the circumstances at and preceding the time they were uttered, to ascertain whether a reasonable officer would have understood that the defendant was invoking that right. That is the standard that the United States Supreme Court has adopted under the Fifth Amendment. Davis, 512 US at 458-59. Under that standard, “[e]vents preceding the [response]” or “nuances inherent in the [response] itself’ can evince ambiguity and justify the conclusion that an accused’s response was equivocal. Smith v. Illinois, 469 US 91, 100, 105 S Ct 490, 495, 83 L Ed 2d 488 (1984). However, “an accused’s post request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Id.7

*613That standard also comports with the demands of Article I, section 12. Whether or not custodial interrogation is actually abusive, this court has recognized that the setting in which it occurs is inherently coercive. Sparklin, 296 Or at 89. As then-Judge Gillette succinctly explained:

“A person who is in custody is not the master of the situation; the police are. Article I, section 12, provides a way for a suspect to assert some control over the situation so that whatever he does will be the result of a knowing and voluntary choice.”

State v. Rowe, 79 Or App 801, 805, 720 P2d 765, rev den, 302 Or 86 (1986). Where an officer reasonably would understand that a suspect in police custody has unequivocally invoked his or her right against self-incrimination, further questioning to confirm that the suspect actually meant to invoke that right — whether by design or not — can erode the suspect’s will. To ensure respect for a suspect’s choice, the rule prohibiting the further questioning of a suspect who has invoked the right against self-incrimination therefore should be applied from the perspective of the police officer who must follow it at the time the officer is to follow it. See State v. Smith, 301 Or 681, 713, 725 P2d 894 (1986) (Linde, J., dissenting). That standard has the further advantages of reducing “difficulties of proof and [providing] guidance to officers conducting interrogations.” Davis, 512 US at 458-59. Thus, we conclude that, in determining whether a defendant’s words constituted an unequivocal invocation of the right against self-incrimination under Article I, section 12, a reviewing court must consider those words, in the context of the totality of circumstances existing at the time of and preceding their utterance, to determine whether a reasonable officer would have understood that the defendant was invoking that right.8

*614The parties agree that, to determine whether that standard is met, a court may consider the preceding words spoken by the defendant and the interrogating officer, the demeanor, gestures, 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. Courts applying the Fifth Amendment have considered such contextual indicia,9 and we agree that such indicia also are appropriate considerations in evaluating whether a defendant’s words amounted to an unequivocal invocation of the right against self-incrimination under Article I, section 12.

With the foregoing principles in mind, we turn to the circumstances of this case.

APPLICATION

The parties agree that, based on their ordinary meaning, defendant’s words “I won’t answer any questions,” appeared unequivocally to invoke his right against self-incrimination. However, they disagree about what, in context, a reasonable officer would have understood those words to communicate. As noted, the trial court found as fact that defendant’s words were “posed” as a “quandary” and that “defendant didn’t quite understand what was going on at the time.”10 Based on that finding, the court reached the legal conclusion that defendant did not unequivocally invoke his right against self-incrimination. The ultimate question before us is whether evidence in the record preceding the apparent invocation supported that finding of fact and legal conclusion. James, 339 Or at 481.

The state makes three arguments in defense of the trial court’s finding of fact and its resulting legal conclusion: *615(1) the finding was supported by Ganete’s testimony that he interpreted defendant’s words as a question; (2) evidence of a language barrier between Gánete and defendant also supported the finding; and (3) the finding was supported by evidence that defendant either was confused about the warning that anything he said could be used against him or was uncertain whether to invoke his right to remain silent. We address those arguments in order.

First, the state asserts that the trial court’s finding of fact was supported by Detective Ganete’s testimony that he “interpreted [defendant’s words] as a question that [defendant] was pondering from lack of understanding.” The state posits that Gánete “genuinely perceived defendant’s words as a question, presumably due to defendant’s intonation and demeanor, which [Gánete] may well have mimicked for the trial court when repeating them in his testimony.” There are two difficulties with that argument. First, there was no evidence in the record that defendant’s demeanor, gestures, or tone of voice indicated to Gánete that defendant had posed a question.11 Second — and in any event — the record shows that Ganete’s interpretation of defendant’s words was not based on defendant’s demeanor, gestures, or intonation in uttering them, but, instead, was based on the substance of their conversation. When the trial court asked Gánete why, in light of defendant’s “pretty unequivocal” words, Gánete “continue [d],” Ganete’s reply was straightforward:

“Because I asked at one point ‘are you saying you don’t want to talk to me at all? You just want me to go away?’ And his expression was, ‘no I can’t talk to you if I don’t understand *616what this right means because you’re telling me I have the right to remain silent. I don’t understand what this means.’

“So, your honor, I guess to clarify this, I — my understanding is that he wasn’t understanding that right, and I made every effort to explain to him what that meant and this was our going back and forth until he finally said, ‘Oh, I see what you’re telling me. Okay. Under that condition, then I want to talk to you. I understand what that right means.’”

The problem is that, in chronological sequence, the verbal exchange on which Gánete relied took place after defendant said “I won’t answer any questions,” and after Gánete had moved on to a discussion of other rights, not before. Because Ganete’s answer to the trial court’s question was based on what transpired after defendant said “I won’t answer any questions” and after Gánete nevertheless had continued the interview, the described exchange could not have informed Ganete’s understanding of defendant’s words when he uttered them.

Second, as noted, the state asserts that a “language barrier” between Gánete and defendant was an additional circumstance that supported the trial court’s finding. It is true that the trial court referred to a language barrier in making its ruling. However, the only evidence in the record was that no such barrier existed. As discussed, Gánete testified that he and defendant were able to understand each other in Spanish, the language in which they conversed. Accordingly, that argument does not assist the state either.

Third, the state observes that, before defendant said “I won’t answer any more questions,” he appeared not to understand “the warning that anything he said could be used against him.” The state argues that “[defendant had already expressed confusion regarding that warning and his question was the latest in a series of inquiries or statements seeking further clarification,” and “[i]n that context, a reasonable officer could not have been certain whether defendant was continuing to seek clarification or whether he was switching gears and now invoking a right.” We disagree.

The state is correct that the warning that “ [anything you say may be used against you in a court of law,” *617appeared to confuse defendant. And, it is true that that warning does refer to a consequence of a suspect’s waiver of the right against self-incrimination. However, the warning and the right to remain silent were stated to defendant separately. Before he said “I won’t answer any questions,” defendant did not express any confusion about his right to remain silent. In fact, in light of the preceding conversation between defendant and Gánete, defendant’s words indicated that he understood exactly what that right meant.12 Thus, viewed in its proper context, defendant’s apparent confusion about the meaning of the warning that his statements could be used against him could not reasonably be understood to cast doubt on the ordinary import of his declaration, “I won’t answer any questions.” See Barrett, 479 US at 529; Kell, 303 Or at 99 (“interpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous”).

Moreover, to the extent that the trial court’s finding that defendant “posed” a “quandary” was meant to indicate that defendant was uncertain about whether to invoke his right against self-incrimination, that finding was based on a similarly speculative — and equally impermissible— inference. That is, assuming that a reasonable officer would have understood that defendant was confused about the meaning of the warning that anything he said could be used against him, that confusion should not have been understood to indicate that, when defendant said “I won’t answer any questions,” he was uncertain about whether to invoke his right to remain silent. There was nothing in those words or the context in which they were spoken indicating that defendant was uncertain about whether to exercise that right, even though Gánete may have believed that, with further clarification of the warning, defendant might change his mind.

Of course, if defendant subsequently had reopened the dialogue with the officers by making unprompted statements that indicated a willingness to have a generalized discussion about the investigation, they could have *618proceeded with further questioning. McAnulty, 356 Or at 456-57. Likewise, if the officers had reinitiated the conversation after waiting a reasonable length of time, given defendant new Miranda warnings, and defendant had indicated willingness to talk about the investigation, further questioning also would have been permissible. Id. at 458. In the meantime, however, the officers were required to take defendant at his word and cease questioning him. Sparklin, 296 Or at 89.

To recapitulate: Defendant’s words “I won’t answer any questions” appeared on their face unequivocally to invoke his right against self-incrimination. As discussed, the objective meaning of those words must be considered in the totality of circumstances at and preceding the time they were uttered, not based on evidence that occurred after defendant invoked his right to remain silent. Thus, the trial court erred in basing its conclusion on evidence that occurred after defendant invoked that right.

Here, there was no evidence in the record to support the state’s argument that a reasonable officer would have understood defendant’s words as a question when they were uttered. Nor was there evidence of a language barrier between defendant and the officer. Finally, there was no evidence that defendant’s words posed a “quandary,” in that they conveyed either confusion about the meaning of his right against self-incrimination or uncertainty about whether to invoke that right. Accordingly, there was no evidence preceding or contemporaneous with the invocation to support the trial court’s conclusion that defendant failed to unequivocally invoke his right to remain silent. Because the officer continued to question defendant after his unequivocal invocation and that constitutionally precluded questioning led to defendant’s challenged statements, those statements should have been suppressed for a violation of his right against self-incrimination.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.