State v. Gold

No. 650              December 13, 2023                    479

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                CONOR AUSTIN GOLD,
                  Defendant-Appellant.
               Benton County Circuit Court
                  20CR22569; A177144

   Locke A. Williams, Judge.
   Argued and submitted August 30, 2023.
  Marc D. Brown, Deputy Defender, argued the cause for
appellant and filed the brief for appellant. Also on the brief
was Ernest Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services.
   Christopher A. Perdue, Assistant Attorney General,
argued the cause and filed the brief for respondent. Also
on the brief were Ellen Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   TOOKEY, P. J.
   Reversed and remanded.
   Kamins, J., dissenting.
480                                                              State v. Gold

           TOOKEY, P. J.
         Defendant appeals a judgment of conviction for
seven counts of first-degree encouraging child sexual abuse,
ORS 163.684, and one count of encouraging sexual assault
of an animal, ORS 167.341. On appeal, defendant assigns
error to the trial court’s denial of his motion to suppress.
Specifically, among other points, defendant contends that
law enforcement violated his rights under Article I, section
12, of the Oregon Constitution when officers interrogated
defendant after he invoked his right to counsel.1 For the rea-
sons below, we reverse defendant’s convictions and remand
for further proceedings.
                              BACKGROUND
         “We review the denial of a motion to suppress for
legal error and are bound by the trial court’s findings of fact
if evidence in the record supports them.” State v. Gillispie, 

, 

, rev den, 

 (2019). We
state the following facts in accordance with that standard.
         In January 2016, defendant was convicted of two
counts of first-degree encouraging child sexual abuse, ORS
163.684, and seven counts of second-degree encouraging
child sexual abuse, ORS 163.686. Defendant’s convictions
were the result of evidence discovered by Detective Dale
and others when executing a search warrant on defendant’s
mother’s home. Defendant resided at his mother’s home at
all times relevant to defendant’s 2016 convictions and to
the convictions defendant now appeals. As part of his pro-
bation for the 2016 convictions, defendant was prohibited
from possessing any device with access to the internet with-
out the written approval of his probation officer. He was
also required to consent to search upon his probation offi-
cer’s reasonable belief that evidence of a probation violation
would be found.
       In October 2016, during a polygraph examination,
defendant admitted to accessing child sexual abuse materials.

    1
      Article I, section 12, provides that, “[n]o person shall be * * * compelled in
any criminal prosecution to testify against himself.” The Article I, section 12,
“right against self-incrimination includes a derivative right to counsel during
custodial interrogation.” State v. Scott, 

, 

 (2007).
Cite as 

 (2023)                            481

That information was sent to Dale who, in November 2016,
served a second warrant on defendant’s mother’s home.
        In November 2019, defendant’s probation officer,
Johnson, during a search of defendant’s mother’s home,
seized an X-Box that defendant possessed and had been
using to access the internet. Johnson gave the X-Box to
Dale to search. Subsequently, Dale located multiple email
accounts associated with the X-Box.
         In January 2020, defendant gave consent for law
enforcement to monitor the email accounts Dale had discov-
ered. From his review of those email accounts, Dale also dis-
covered that, within minutes of Johnson leaving defendant’s
mother’s house with the seized X-Box in November 2019,
a new device—a Kindle Fire—had been associated with
defendant’s Comcast account. Dale began an investigation
“related to the viewing and accessing of child sexual abuse
material through the X-Box.” Dale also informed Johnson
about the Kindle and started preparing a third search war-
rant for defendant’s mother’s home.
        In March 2020, as a result of monitoring defen-
dant’s email accounts, Dale received an email notification
from Comcast that defendant had activated a one-hour on
demand-internet pass. Dale immediately notified Johnson
that defendant had activated the internet pass.
         Johnson and another probation officer, Dede, then
went to defendant’s mother’s house try to locate the Kindle
Fire that defendant was using to access the internet, “know-
ing that [defendant had] only gotten a one-hour pass,” which
left a just narrow window for Johnson and Dede to “go out
there and pretty much confirm that yes, he has this device,”
which Johnson planned to seize. Johnson also arranged for
Dale to meet her at defendant’s mother’s house.
        When Johnson arrived at defendant’s mother’s
house, defendant’s mother let Johnson and Dede in and
led them upstairs to defendant’s room. Defendant’s door
was closed. Defendant’s mother knocked on the door and
announced, “Your PO is here.” Defendant opened the door.
Johnson told defendant that she was there to do a residence
check, that “based upon information that we had received
482                                                   State v. Gold

from * * * email” she “believed that he had been accessing
the internet through a device,” and asked for consent to
search his room for a device. Defendant said that he “wasn’t
sure” if he wanted to consent to a search. By that point, Dale
had arrived, and the events that followed, as summarized
below, were recorded on Dale’s body camera.
         Johnson said to defendant, “so you don’t want to con-
sent to a search, do you want to tell me where the device is?”
In response, defendant disclosed to Johnson that he had a
PlayStation in the closet, and Johnson responded, “OK, a dif-
ferent one than that?” Johnson then asked to look in the closet
at the PlayStation and defendant consented to that request.
        Johnson then said to defendant, “So are there other
devices? Where? Come on.” Johnson went on to say to defen-
dant, “So this one[, the PlayStation,] is different than you’ve
had before, alright? So other devices.” And then Johnson
asked defendant about the power cords for the PlayStation.
         Defendant’s mother, who had been present for
Johnson’s entire exchange with defendant, then asked
whether this was about “adding a new device,” and Johnson
responded that this was “more specifically about [defendant’s]
use.” After a brief exchange with defendant’s mother, Johnson
asked defendant’s mother whether defendant had spoken to
her about the X-Box that Johnson had seized that defendant
had been using to access the internet, and defendant’s mother
indicated that defendant had not. Johnson testified that she
asked defendant’s mother about the X-Box because she had
twice previously spoken with defendant about “sharing that
information with his mom and discussing it” with her for
reasons of “safety, protection,” and “accountability.” Johnson
then said to defendant, “so you still haven’t done that?”
        Johnson then asked defendant again, “[Defendant,]
do you want to tell me where your other device is?” And fol-
lowed that statement by saying to defendant:
   “Well, you know when you think of it if you’re really want-
   ing to change behaviors there’s that honesty part that
   comes with it. And obviously it’s always a choice, * * * but if
   you are really wanting something different and to change
   those that’s part of it.”
Cite as 

 (2023)                               483

         Defendant said he did not think he had enough
information regarding consenting to a search, and Johnson
read defendant information about his obligation to consent
to searches by his probation officer before telling him, “So
like I said, it’s up to you, you’re the one that has that ability
to give consent.”
         Defendant’s mother then asked whether defen-
dant would be taken into custody if he did not consent to
a search, and Johnson told her that she did not know, and
that it depends on the “totality of the situation.” Defendant’s
mother told Johnson that she is “never comfortable with
searches of her house,” and defendant then stated that he
did not consent to a search.
         Defendant’s mother asked Johnson if “there is
something specific that you are looking for that he can hand
over to you?” And Johnson said, “yes, * * * specifically an
electronic device that accesses the internet. Most likely a
tablet or phone.” After that, defendant pointed out that he
had disclosed the PlayStation, and Johnson said, “[defen-
dant,] that’s why I asked you if you wanted to tell me where
the other device is.” Defendant reiterated that he did not
consent to a search.
         Johnson, Dede, Dale, defendant, and defendant’s
mother then went downstairs. Johnson spoke with Dale out-
side the residence and told him that she was going to take
defendant into custody for a probation violation based on his
refusal to consent to a search, but that she needed someone
who was able to transport him. Dale arranged for another
individual from the sheriff’s office, Lieutenant Duffitt, to
come to the residence to transport defendant. Dale and
Johnson then returned to the house. Johnson explained to
defendant that he was under arrest for violating the con-
ditions of his supervision, but that he would not need to be
handcuffed while they were waiting for a car to transport
him as long as he consented to a patdown. He consented.
         Once Duffitt arrived approximately 13 minutes
later, Dale read defendant his Miranda rights, handcuffed
him, and defendant’s mother told defendant to “ask for a
lawyer.” Defendant said, “I’m requesting a lawyer,” and his
484                                                             State v. Gold

mother said, “No, I mean, if you’re going to be questioned.”
Defendant responded, “All right then. I hear you.” Dale then
told defendant and his mother, “I have no intentions of ques-
tioning him right now, but as soon as we’re done here I’m
going to kind of fill everybody in on what’s going on.”
         At that point, with defendant sitting on the bottom
of the stairs, handcuffed, Dale said to defendant and his
mother that he was “just going to lay out” all the informa-
tion he has “because at this point there is no need to keep
anything secret.” Dale “mostly directed” the statements that
followed, which presented some of the evidence law enforce-
ment had collected regarding defendant, toward defendant’s
mother, who was sitting on a couch inside a room across from
the stairs.2 But defendant was seated only a few feet from
Dale and could hear Dale. During the suppression hearing,
Dale testified that everyone at that point was “kind of in
a circle,” although defendant’s mother was “in a different
room.”
           The following exchange then occurred:
    “DALE: [Defendant’s] email accounts were signed over
    [to us]. He consented to giving us access and controlling
    three email accounts back in January. Inside of one of
    those three email accounts there are receipts dating back
    to 2017. Those receipts are coming from Comcast. They
    are receipts for paying for on-demand Wi-Fi. Comcast has
    cable modems in millions of homes and businesses across
    the United States. There is a home in your neighborhood

    2
      We note that, during the suppression hearing, Dale agreed with defen-
dant’s characterization that he presented the evidence that the state had against
defendant after defendant had asked to speak with an attorney:
    “Q. When you got there you were aware that [defendant] had requested to
    speak with an attorney?
    “[DALE]. Yes.
    “Q. And you went on to present the evidence that you had against [defen-
    dant]; correct?
    “[DALE]. Yes.”
Dale testified as follows regarding his intention when “fill[ing] everybody in”:
    “[DALE]. At that point I wanted to make sure that [defendant’s] mother, who
    he’s living with, was fully aware of the behavior that he was engaging in which
    would have been happening under her nose, I would assume without her know-
    ing, so that she could be fully understanding of what his actions have been and
    to be fully aware of our processes and what needed to happen from here on out.”
Cite as 

 (2023)                                 485

  within range of this house that is broadcasting one of those
  publicly available Wi-Fi hotspots. Individuals can use a
  device to sign on and use a credit card. It could be a prepaid
  card that you buy from the store. And you can pay for a one-
  hour block of time, a two-hour block of time, a one-day pass,
  a one-week pass, or a one-month pass for various amounts.
  And then once a month you get a one-hour pass for free.
  So there are receipts dating back to 2017. I’ve analyzed
  the receipts for 2019. And in comparison to the number of
  hours there are in the year of 2019, he had paid for enough
  Wi-Fi passes to cover 49.37% of the year. So for half of the
  year he has access to the internet.
     “We also know that within minutes of [Officer Johnson]
  leaving here in November [2019] that same email account
  got an email from Comcast that says ‘Is this Amazon Fire
  tablet that you just added to your account—is this you? Is
  this an authorized access to your on-demand account?’ So
  we know that [defendant] had activated [an] Amazon tablet
  on his Wi-Fi account.
      “So we know that he’s been paying for Wi-Fi passes. His
  last one that he paid for expired, I think, on Monday night
  around 6 pm. It was a one-week pass. And this morning
  probably about an hour and ten minutes ago he activated
  a one-hour free pass to access the internet that would have
  now expired about 10 or 15 minutes ago. So we do know
  that accesses to those Wi-Fi spots have been happening
  from an account that he gave us consent to use, that he
  has a password to use, and that has other emails in there
  that are indicative of him using because he is mentioning
  to us giving consent in the past for usernames that are all
  associated with some of these other accounts that are also
  in there. And then we know from data from Comcast that
  those access times—they’re all hitting one of those Wi-Fi
  hotspots here in your cul-de-sac.
     “So we intend to continue to write a search warrant to
  search your home for any devices that are capable of access-
  ing the internet to include—
     “DEFENDANT’S MOTHER: My entire home?
     “DALE:    Yes. To include—
     “DUFFIT: We came here looking for the consent and
  cooperation rather than writing a search warrant, hitting
  your door down, coming in, spending a—hours and hours
486                                                 State v. Gold

   of time to look for these devices and this particular device
   out of respect for you and out of respect for this household.
   We came looking for consent, hoping that somebody would
   understand that, especially somebody who’s been down this
   road before, right? So, I’ll let you continue with what our
   road is for the search warrant. We can still provide you
   options. It doesn’t necessarily have to happen. We can give
   you options, okay?
      “DEFENDANT’S MOTHER: But you’re going to start
   with his room and not tear apart my house?
       “DALE: Just to back up a little bit. I was already in the
   process of writing the search warrant. It is not complete at
   this time. I have not applied for that search warrant to a
   judge. My intention is to complete that process today and
   go in front of a judge and apply to receive that search war-
   rant. But my intention would be that that search warrant
   would cover the entirety of this household because we don’t
   know where he would be hiding such a device. I mean, the
   search warrant—regardless of where we start with the
   search warrant, the search warrant is going to authorize
   a search of everywhere, because we don’t know where he
   could be hiding something. So, again, our intention was
   now that we knew that he had come online this morning at
   8:25 or 8:26 am that we knew he could be home and we were
   hoping that through the process of his conditions of proba-
   tion and him being able to provide consent through that
   that we could find it and potentially avoid having to do the
   search warrant. But obviously things have changed now.
   So my intention is going to be to seal off his room with evi-
   dence tape and we will leave, and we will work on writing a
   search warrant. When and if we are able to get that search
   warrant and come back, if for some reason, we find that
   that evidence tape has been cut or been removed from his
   room that would be grounds for us to arrest anybody in the
   household for tampering with evidence and other crimes
   related to impeding our investigation. So that’s where we’re
   at right now. And that’s where we intend to move forward.”
        At that point, Duffitt told defendant’s mother, “[u]nless
you know what we’re looking for, and we can obviously
go down that road.” To which defendant’s mother replied,
“I have no idea. But [defendant], I don’t want them going
through my house. If this is where we are, this is where we
Cite as 

 (2023)                                   487

are.” Defendant did not respond to his mother. Duffitt then
said to defendant:
      “[Defendant,] I understand that your mom instigated
  you to say you wanted a lawyer before any questioning.
  We’re obviously not questioning you. But we can address
  that if you want to talk further or if you want to go down
  that road. That’s fine. That’s up to you. I’m not by any means
  making any promises, threats, any other thing that’s going
  to be—besides you changing your mind. You can always let
  us know that too.”
         Defendant’s mother then said to defendant: “If
they’re going to find something through a search warrant,”
and defendant interjected, “Please, just give me a minute.”
        Dale then went into the office where defendant’s
mother was sitting and, using his phone, showed her the
email defendant had received that morning reflecting that
defendant had used an “on-demand” Wi-Fi pass that morn-
ing. The following exchange occurred:
     “DALE: So for instance, I set up his account which he
  gave us consent to take over * * * to forward any of these
  emails that come in his account to myself.
    “DEFENDANT’S          MOTHER: Yeah,         I   got   it,   I
  understand.
      “DALE: And so the email says ‘Thanks for order-
  ing a Wi-Fi on-demand pass. Your pass was activated on
  3/18/2020 at 11:25 am Eastern Standard Time,’ so that
  would be 8:25 am here. And you can use it through the
  same day an hour later at any hotspot. And on this par-
  ticular one it doesn’t show that he used a credit card to
  pay because it’s just going to be the one-hour free monthly
  pass that you can get. And that was sent to girlcave69@
  [    ].com. That’s one of the three that he gave us consent
  to take over earlier. So, that’s—and I’ve got 57 other emails
  like this going back to 2017.”
        Shortly thereafter, Johnson told defendant, “so,
[defendant], we are going to be transporting you soon,
so.” Duffitt and Dale briefly conferred in the kitchen, and
although the exchange is largely indiscernible on Dale’s
body camera footage, Dale testified that he and Duffitt were
concerned that defendant “might have been conflicted in
488                                                   State v. Gold

wanting to talk with us further or to make any statements
to us or to consent to seizure of this device in front of his
mother and so we were discussing whether or not he could—
may or may not feel more comfortable having this discussion
or this thought process somewhere else.”
        Duffitt and Dale returned to the living room and
Duffitt asked defendant, “[g]iven where you’re at, man,
would you rather be outside not in front of everybody else?”
Defendant responded, “I’m going to tell you where it is.”
       Dale and Duffitt then went upstairs with defendant
and Duffitt told defendant:
      “You still have the right to remain silent. You have the
   right to talk to an attorney before you talk to us at all.
   Before you give consent for anything, okay? And we, like
   he explained, we’d be applying for and asking a judge for
   a search warrant so if you consent it’s your consent alone,
   okay? You do not have to give consent. You do not have to
   do that. Do you understand that? I just want to make sure
   you understand you’re giving consent based on consent not
   because there’s any other promises or fear you have.”
        Defendant answered, “I just fear that you’re going
to emotionally destroy my mother by pulling our house apart
again and that is what I’m basing this decision on.”
        Duffitt, Dale, and defendant then discussed consent
further and had the following exchange:
       “DEFENDANT: I am choosing to tell you where this is
   to help my mother. Not for any reason for myself. Because I
   do not want my mother to suffer any more than she already
   is. I am consenting. I understand what that means.
       “DUFFITT:     Consenting to show us where this device
   is at?
      “DEFENDANT: Yes.
      “DUFFITT [to Dale]: Any follow up?
       “DALE: No, just, again, we’re just making sure
   because you told us ‘no’ before, which is fine, and so in those
   circumstances we have to make it blatantly clear and obvi-
   ous that it’s not because, you know, we’re coercing you, or
   making you promises of any kind.
Cite as 

 (2023)                                               489

      “DEFENDANT: You are not promising me anything. I
    merely wish to save my mother a little bit of pain.”
        Defendant then directed Dale and Duffitt to the
Kindle Fire, which was hidden behind some books on his
bookshelf. Law enforcement did not conduct any further
search of the bedroom or seek any further consent to search
the bedroom.
         As a result of content found on the Kindle Fire, the
state charged defendant with 19 counts of sexual miscon-
duct, including encouraging child sexual abuse and encour-
aging the sexual assault of an animal. Relying on Article I,
section 12, defendant moved to suppress any evidence gath-
ered by law enforcement after he had invoked his right to
counsel as the product of unlawful interrogation.3
         The trial court denied defendant’s motion to sup-
press. It first determined that defendant unequivocally
invoked his right to counsel, but that “law enforcement
talking with him about the consent afterward” was “not
impermissible” and was “not designed to elicit incriminat-
ing statements,” but merely “advising him regarding the
consent.” It further found that defendant’s decision to dis-
close the location of the Kindle Fire was made “to protect his
mother” and “not have another search” of the home.
         Subsequently, defendant entered a conditional
guilty plea to seven counts of first-degree encouraging child
sexual abuse, ORS 163.684, and one count of encouraging
sexual assault of an animal, ORS 167.341. This appeal
followed.
                              THE APPEAL
        Defendant assigns error to the trial court’s denial
of his motion to suppress. Defendant argues, in pertinent
part, that under the totality of the circumstances, law
enforcement violated his rights under Article I, section 12,
“when they made statements that were likely to elicit an

    3
      We note that, “[w]here a defendant’s Article I, section 12, right to counsel
has been violated, the remedy for that violation extends not only to a defendant’s
uncounseled responses to a detective’s questions but also to the physical and
testimonial evidence that is the product of that violation.” State v. Joaquin, 

, 

 (2020).
490                                                                State v. Gold

incriminating response.”4 Specifically, as defendant sees it
and as clarified at oral argument, law enforcement violated
defendant’s Article I, section 12, rights when they “pres-
sured defendant to reveal the location of the Kindle.”
         The state responds that officers did not violate
defendant’s rights under Article I, section 12, because they
did not interrogate defendant “by accepting defendant’s deci-
sion to disclose the computer tablet after his mother urged
him to do so” or when they explained “to defendant’s mother
that they would apply for a search warrant based on defen-
dant’s activities.” As the state sees it, “none of the officers’
statements to defendant’s mother were statements that they
should have known were reasonably likely to elicit an incrim-
inating response from defendant.”5 The state also likens this
    4
       Defendant also makes various arguments under the Fifth Amendment to
the United States Constitution and Article I, section 11. In light of our analysis
in this opinion, which concludes law enforcement violated defendant’s rights
under Article I, section 12, we need not address defendant’s Fifth Amendment or
Article I, section 11, arguments.
    5
      The state also argues that “even if the officers interrogated defendant under
Article I, section 12, defendant’s decision to disclose the computer tablet was atten-
uated from the alleged illegality.” Further, pointing to a statement in its response
to defendant’s motion to suppress in the trial court that “[w]hen looking at the
totality of the circumstances, there is no evidence [defendant’s] consent was any-
thing other than an act of free will,” the state argues that it sufficiently raised its
attenuation theory below and, therefore, we may affirm on the basis of attenuation.
     We disagree that the state adequately raised its attenuation theory below. In
the trial court, the state argued that the evidence at issue did not need to be sup-
pressed because (1) a request for consent to search is not an interrogation in viola-
tion of the right to counsel and (2) defendant’s consent was voluntary. But whether
officers unlawfully interrogated defendant, and whether he subsequently volun-
tarily told officers the location of the tablet, are different issues than whether
police exploited the unlawful interrogation to obtain the disputed evidence. See
State v. Unger, 

, 

 (2014) (“Voluntary consent, while
important, is not dispositive and does not relieve courts of undertaking the fact-
specific exploitation analysis.”). And because the state did not raise its attenuation
theory below, the trial court never engaged in the necessary “fact-specific inquiry”
regarding whether the state carried its burden of proof under that theory. State v.
Escudero, 

, 

 (2021) (noting “the determination of
whether law enforcement exploited unlawful conduct to obtain consent involves a
fact-specific inquiry into the totality of the circumstances to determine the nature
of the causal connection” (internal quotation marks omitted)).
    Further, we disagree with the dissent that the state’s attenuation argument
“meets the ‘right for the wrong reason’ exception as described in” Outdoor Media
Dimensions Inc. v. State of Oregon, 

, 659-60, 

 (2001). 

 (Kamins, J., dissenting). Indeed, the state does not argue that
the requirements of Outdoor Media are met. State v. Carter, 

, 

 (2021) (noting that it is “the state’s burden to establish that the
Cite as 

 (2023)                                                 491

case to State v. Hatfield, 

, 

(2011), rev den, 

 (2012), where, as discussed fur-
ther below, we held that mere request for consent to search is
not “interrogation” under Article I, section 12.
          A suspect “has an Article I, section 12, right to coun-
sel that derives from the state constitutional Miranda right.”
State v. Swan, 

, 

 (2018). The Article I,
section 12, right to counsel “attaches when a suspect who is
in custody or compelling circumstances invokes the right.” 

Once a suspect has invoked that right, law enforcement “inter-
rogation” must cease. State v. Shevyakov, 

,

 (2021). “ ‘Interrogation,’ for purposes of Article I,
section 12,” means not just questioning, but any “police state-
ments or conduct likely to elicit some type of incriminating
response.” 

 (some internal quotation marks omitted); see
also Rhode Island v. Innis, 

, 

,

 (1980) (holding that under the Fifth
Amendment to the United States Constitution “interrogation”
“refers not only to express questioning, but also to any words
or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from
the suspect” (footnote omitted)).
         More specifically, “because Article I, section 12, con-
cerns the right not to be compelled to testify, interrogation
means statements or conduct likely to elicit (1) an incrimi-
nating response that is (2) testimonial; and (3) that the pros-
ecution later may seek to introduce at trial.” Shevyakov, 

 (internal quotation marks omitted).6

requirements for affirmance on an alternative basis are satisfied”). But, in any
event, given “the fact-intensive nature of the lack of exploitation inquiry, we have
frequently declined the state’s invitation to affirm denial of a suppression motion
on that alternative basis when the state did not argue lack of exploitation below.”
State v. Aguirre-Lopez, 

, 

 (2018) (collecting cases).
In this case, at the very least, affirming under the “right for the wrong reason”
doctrine is not appropriate because, had the state raised its attenuation argu-
ment below, defendant might have created a different record in the trial court.
State v. Najar, 

, 

 (2017) (declining to consider
attenuation argument as alternative basis to affirm because “[a]t a minimum,
[the defendant] might have chosen to testify about how the initial illegal seizure
contributed to his ultimate consent and admission to possessing drugs”).
    6
      Under Article I, section 12, “interrogation” does not include questions “nor-
mally attendant to arrest and custody.” State v. Schmidtke, 

,
492                                                               State v. Gold

        In considering whether the conduct of law enforce-
ment violates a defendant’s Article I, section 12, rights, we
have explained that a “consent to search is not an incrimi-
nating statement under Article I, section 12,” and, for that
reason, a request for consent to search is not “interrogation”
under Article I, section 12. Hatfield, 

.7
         Thus, in Hatfield, we concluded that law enforce-
ment did not violate the defendant’s Article I, section 12,
right to counsel when, after the defendant invoked his right
to counsel, law enforcement repeatedly requested the defen-
dant’s consent to search his residence and informed him
that, if he did not consent, they would apply for a search
warrant. Id. at 73-40, 745. The defendant in Hatfield ulti-
mately consented to the search of his residence with the
caveat that he be permitted “to sit on his couch with his
handcuffs removed, put away his dogs, and smoke a ciga-
rette,” and that officers not “ransack the house.” Id. at 739.
        We have also explained that, in some cases, con-
fronting “a detainee with the evidence against [them] can
constitute interrogation,” although it does not always. State
v. Schmidtke, 

, 

 (2018). The
“manner in which the defendant is confronted with that evi-
dence affects the analysis.” 

 (internal quotation marks
omitted).
         Both State v. Bradbury, 

, 

, rev den, 

 (1986), and State v. Guayante, 

, 

, rev den, 

 (1983), are
illustrative of the analysis we undertake in determining
whether confronting a detainee with the evidence against
them constitutes interrogation:

 (2018). We do not understand the state to contend that the conduct of
law enforcement in this case constitutes questions normally attendant to arrest
and custody.
     7
       We pause to note that that rule from Hatfield is subject to an important
caveat: It applies only where the law precludes the use of a person’s refusal to con-
sent to search at trial. Shevyakov, 

 (“[W]e conclude that the rule
we have discerned—that asking for consent to search * * * constitutes impermissi-
ble interrogation unless the law precludes the use of a person’s refusal against the
person at trial—is the one demanded by the dictates of current precedent.”).
    As explained below, 

, in our view, the officers’ conduct in
this case was likely to elicit the incriminating response that it did from defen-
dant. It was not a mere request for consent to search.
Cite as 

 (2023)                                              493

       “[I]n Guayante, we held that an officer interrogated the
    defendant when the officer, without prompting from the
    defendant, made a statement using evidence to connect
    the defendant to the crime. 

. In that case,
    we held that the officer interrogated the defendant when,
    while in the defendant’s house, he pointed to evidence that
    he found in the defendant’s house and stated, ‘Look, we
    already know you did it. Here is the stuff you took from
    him.’ 

. In contrast, in Bradbury, we held that
    an officer did not interrogate the defendant when, while in
    a police station and in response to an unprompted request
    from the defendant, the officer pointed to items that the
    defendant was accused of stealing when telling the defen-
    dant that he was being charged with burglary without
    also indicating how that evidence tied the defendant to the
    crime. 

.”
Schmidtke, 

. A further datapoint for such
analysis is our decision in Schmidtke, where we held that
when an officer told the defendant that the defendant had
been identified in a surveillance video in the area of a crime
moving property into a storage unit, that constituted inter-
rogation. 

.
        Turning back to the instant case, we conclude that
the conduct of law enforcement was conduct likely to elicit
some type of incriminating response from defendant (i.e.,
the location where defendant had hidden the Kindle Fire)
and, therefore, constituted unlawful interrogation of defen-
dant under Article I, section 12.
         Here, defendant was mere feet from Dale and
Duffitt when Dale provided a detailed description of how
law enforcement had determined that defendant was using
the internet, notwithstanding the conditions of his proba-
tion (albeit a description “mostly directed” to defendant’s
mother).8 Dale indicated that law enforcement had already
obtained evidence from a third party, Comcast, showing
internet access in the cul-de-sac tied to defendant’s accounts;
that law enforcement had evidence of improper internet
     8
       To the extent the state argues that defendant himself was already aware
of the information that Dale conveyed to defendant’s mother and defendant while
defendant was handcuffed on the stairs because most of the details of that expla-
nation had been conveyed to him by law enforcement, we reject that argument. It
is not supported by the record.
494                                               State v. Gold

usage dating back to 2017; that law enforcement was aware
defendant’s access was pervasive—that is, that through
Wi-Fi passes defendant was able to access the internet for
“49.37%” of 2019 and that law enforcement had taken the
time to perform that calculation; that law enforcement knew
the specific type of device defendant was using to access the
internet, a Kindle Fire; and that law enforcement knew the
month he had connected that Kindle Fire to his account.
        Moreover, even after defendant interjected that he
needed “a minute,” Dale approached defendant’s mother and
continued to present incriminating evidence against defen-
dant with defendant in the immediate vicinity—viz., show-
ing defendant’s mother an email that defendant received
at his “girlcave69” email account reflecting that he had
accessed the internet that very morning. And Duffitt told
defendant and his mother that if law enforcement had to
serve the search warrant that they were applying for, they
would “hit[ ] the door down” (notwithstanding that they were
taking defendant—the suspect—into custody and intended
to cover defendant’s door with evidence tape to make sure
nothing in defendant’s room was tampered with).
         That pressure Dale and Duffitt applied on defen-
dant came shortly after Johnson, with Dale and defendant’s
mother present, had repeatedly asked defendant to disclose
the location of the Kindle Fire—namely, when Johnson
stated to defendant while defendant was in his room:
  •   “Do you want to tell me where the device is?”;
  •   “So are there other devices? Where? Come on.”;
  •   “So this one [the PlayStation] is different you’ve had
      before, alright? So other devices.”;
  •   “[Defendant,] do you want to tell me where your other
      device is?”; and
  •   “[Defendant,] that’s why I asked you if you wanted to
      tell me where the other device is.”
        Johnson also indicated to defendant’s mother,
in front of defendant, that there was something “specific
[defendant could] hand over”—viz., the “electronic device
that accesses the internet.”
Cite as 

 (2023)                                                   495

          It is against that backdrop, with that understand-
ing of what law enforcement was looking for and what would
satisfy them, that we think the pressure law enforcement
put on defendant through its presentation of the evidence
against defendant was likely to elicit the incriminating
response that it did from defendant—viz., the location where
he had hidden the Kindle Fire.9
          In reaching our conclusion, we are cognizant that
disclosing the location of the Kindle Fire is not the only
response that the conduct of law enforcement might have
elicited from defendant in this case. That is, in response to
Dale presenting the evidence that they had gathered against
defendant and saying that they were going to try to obtain a
search warrant, and to Duffitt saying that if they did obtain
a search warrant they would “hit[ ] the door down,” defendant
could have, for example, responded by consenting to a search
of his room. That response, per Hatfield, 

,
would not have been incriminatory under Article I, section
12. But this case is not like Hatfield because in the face of
defendant’s refusal to consent to a search, law enforcement
did not merely continue to request consent to search and
inform defendant that they would apply for a search war-
rant if he did not consent. Instead, after repeatedly asking
defendant for the location of the device they were looking for,
law enforcement presented the evidence they had collected
against defendant. In essence, law enforcement told defen-
dant what they wanted him to disclose—the location of the
Kindle Fire—and, as in Guayante, said, “Look, we already
know you did it. Here is the [evidence].” 

.
          The state notes that accessing the internet is, in
itself, not a crime, and no law enforcement revealed evidence
that “investigators knew what defendant was viewing.” But
    9
      We do not understand the state to argue that defendant’s disclosure of the
location of the Kindle Fire was not an incriminating response, but we pause to
note that our conclusion that it was an incriminating response is in accord with
courts in other jurisdictions that have considered similar issues. See, e.g., State v.
Wethered, 110 Wash 2d 466, 471, 

 (1988) (“Granting permission
to search is consistent with innocence, whereas producing contraband from a
hiding place is essentially an admission of guilt.”); United States v. Green, 

 (5th Cir 2001) (holding that the defendant’s compliance with an
investigator’s request that the defendant “open the combination lock of a gun safe
and locate other stored guns in his home” was “testimonial evidence obtained in
violation of [the defendant’s] Fifth Amendment right to counsel”).
496                                              State v. Gold

in the context of this case, we are not persuaded that that
matters. Defendant would have understood the nature of
Dale’s investigation; the import of the device Dale sought;
and how the evidence connected that device to him.
         Additionally, although Dale’s description of the
evidence against defendant was “mostly directed” toward
defendant’s mother, not defendant, the fact that the conduct
of law enforcement is “mostly directed” toward a third party,
not the suspect, does not preclude such conduct from consti-
tuting unlawful interrogation when the suspect is present
and can hear the conversation. Cf., e.g., Innis, 

 (considering whether officers’ conversation with each
other in front of suspect constituted “interrogation” under
the Fifth Amendment to the United States Constitution, but
concluding that it did not, where the conversation was not
“a lengthy harangue”); see also State v. Ward, 

,
197 n 7, 

 (2020) (“With respect to issues aris-
ing under Article I, section 12, we have sometimes looked
for guidance to Fifth Amendment decisions of the United
States Supreme Court.”). As noted, the question in this case
is whether law enforcement’s “statements or conduct” was
“likely to elicit some type of incriminating response” from
defendant. Shevyakov, 

 (internal quotation
marks omitted). Here, we conclude that it was.
          In reaching that conclusion, we are also cognizant
that defendant ultimately told law enforcement the location
of the Kindle Fire after his mother said to defendant, “I don’t
want them going through my house” and “if they are going
to find something through a search warrant.” Further, the
trial court found that defendant’s decision to disclose the
location of the Kindle Fire was made “to protect his mother”
and “not have another search” of her home. Courts apply-
ing federal law “have held the dictates of Miranda * * * [to
be] inapplicable to questioning of suspects in custody by pri-
vate citizens”—for example, a suspect’s mother—when that
private citizen is “acting on their own initiative.” See, e.g.,
Graham v. United States, 

 (DC 2008)
(collecting cases); Whitehead v. Cowan, 

(7th Cir 2001) (“A police awareness that suspects sometimes
confess after they speak with close friends or family does not
Cite as 

 (2023)                                               497

mean this court should adopt a rule that encourages police
to bar friends or family members from seeing a suspect.”).
Consequently, here, if it were the case that defendant’s
mother, in her capacity as a private citizen, separately, and
without police involvement, encouraged defendant to dis-
close the location of the Kindle Fire and defendant there-
after did so, that set of facts might point toward a different
result. But that set of facts is not the set of facts in this case.
          In this case, defendant’s mother’s statements to
defendant, “I don’t want them going through my house”
and “if they are going to find something through a search
warrant,” occurred during the course of Duffitt’s and Dale’s
interactions with defendant and his mother. Even after
defendant’s mother told defendant, “if they are going to find
something through a search,” and defendant said, “please,
just give me a minute,” Dale continued to present defen-
dant’s mother, with defendant in the immediate vicinity,
with evidence of defendant’s internet usage, and in particu-
lar, his internet usage that very morning. Dale went as far
as to use his phone to show defendant’s mother, in defen-
dant’s presence, the evidence of defendant’s internet usage.
Given that series of events, we think defendant’s decision
to disclose the location of the Kindle Fire—when he stated,
“I’m going to tell you where it is”—cannot be meaningfully
disconnected from the conduct of law enforcement.10
       In sum, the conduct of law enforcement in this
case was “likely to elicit an incriminating response” from
defendant and occurred after defendant invoked his right
    10
       As recently noted by the Supreme Court, the protection “against police
interrogation of a defendant in the absence of counsel—and the exclusion of evi-
dence derived from such an interrogation—can apply not only when the inter-
rogation is conducted directly by the police, but also when the questioning is by
a private citizen acting as an agent of the police.” State v. Benton, 

, 

 (2023) (so noting with respect to the Article I, section 11,
protection against police interrogation of a defendant in the absence of counsel).
    In this case, we do not understand defendant’s mother to have been acting
as an “agent of the police” as that phrase is used in Benton when she encouraged
defendant to disclose the location of the tablet, nor does defendant argue she was
acting as an “agent of the police.”
    But, in our view, in toto, the conduct of law enforcement vis-à-vis defendant
and his mother (in defendant’s presence) was “likely to elicit an incriminating
response” from defendant and a violation of defendant’s rights under Article I,
section 12.
498                                             State v. Gold

to counsel under Article I, section 12. Therefore, we reverse
defendant’s convictions and remand for further proceedings.
        Reversed and remanded.
KAMINS, J., dissenting.
         Defendant was caught red-handed using the inter-
net in violation of his probation. He committed another pro-
bation violation when he declined to give his probation offi-
cer consent to search for the device that he used to access
the internet. As a result, his probation officer decided to
take defendant into custody and did so with the assistance
of the police, who were planning to execute a search war-
rant at his mother’s house while defendant remained in jail.
Defendant was out of options to avoid that outcome, but the
police offered him one. Because police were both respect-
ful of defendant’s autonomy and careful to ensure that his
choice to grant consent to search was knowing and volun-
tary, I respectfully dissent.
         Police had evidence that defendant (who was on
probation and prohibited from using the internet) accessed
the internet from a specific Kindle device in his mother’s
house. When police went to defendant’s house, he invoked
his right to counsel, meaning that the police could not inter-
rogate him but could, in this case, seek consent to search.
The officers told defendant about the specific device they
were seeking and asked for consent to search for it, or for
defendant to turn it over. Alternatively, they would obtain
a search warrant for defendant’s mother’s house (a warrant
that an officer was already preparing as part of a related
investigation). The line between interrogation and seeking
consent to search can be fuzzy. But, here, the police officers
explained their lawful request to defendant, they told him
more than once that he was not required to give his consent,
and they also explained their next steps to him should he
decline to consent. And defendant’s expressed rationale for
his decision to consent—to save his mother “a little bit of
pain”—was itself evidence that the decision was voluntary.
In my view, there was no violation, but, even if there was, it
was attenuated by the police’s subsequent actions.
Cite as 

 (2023)                                           499

        The majority carefully analyzes the police actions in
reaching the conclusion that the police’s request that defen-
dant give them the device strayed into improper interroga-
tion. They draw a finer line than I would. However, because
any possible violation of defendant’s rights was minor, it
was attenuated by police’s subsequent actions. Accordingly,
I would affirm the trial court’s decision not to suppress the
Kindle device.
         At the outset, I disagree with the majority that the
record does not allow us to address the question of attenua-
tion. 

 n 5. When affirming on a basis not
addressed by the trial court, we first ask whether the party
raised the argument below. If so, and “the argument is prop-
erly presented again on appeal and raises a question of law,
we may simply resolve it[.]” Sherertz v. Brownstein Rask, 

, 

 (2021), rev den, 

(2022). As explained below, despite the state not explicitly
using the word “attenuation,” its arguments centered on
the theory that police ensured that defendant’s provision of
the Kindle1 was not caused by the officers’ earlier conver-
sations with defendant, rendering his consent to turn over
the device voluntary. Even if, however, the state had not
raised the theory below, we may address it under the right-
for-the-wrong-reason principles set forth in Outdoor Media
Dimensions Inc. v. State of Oregon, 

, 

 (2001).
         First, the state did raise attenuation. As the major-
ity recognizes, the state argued in its written response to
the motion to suppress that defendant’s consent was “an
act of free will.” The state’s brief further contended that,
just before defendant turned over the device, the police
“reviewed his Miranda warnings with [him] again in his
bedroom, told him he did not have to consent and reiterated
they could apply for a warrant.” In its opening argument,
the state picked up on that theme, observing that defendant
understood consent, had been through this process before,
and “was reminded of his Miranda rights, he was reminded
of his right to consent in that instance.”

    1
      The state never sought to introduce any of defendant’s statements or the
testimonial act of locating and producing the Kindle.
500                                                 State v. Gold

         In closing, the prosecutor focused on the circum-
stances that occurred after the alleged pressure from the
police, observing that defendant is “given several minutes,
okay. He’s taking that time. The officers then give him the
ability to go outside and be away from his mother. That’s
when he decides to consent.” Next the state argued that
even after defendant’s decision to consent,
   “the officers don’t just railroad over him and say ‘Where’s
   the device? Tell us where it is.’ No. They’re conscientious,
   they’re concerned. They’re saying ‘Here’s your Miranda
   rights. Do you understand what those mean? Do you
   understand what consent means? Do you understand you
   don’t have to do this? Do you understand we’re not making
   threats and promises?’ ”
In other words, the prosecutor argued that after the conduct
that the majority concludes amounted to a Miranda viola-
tion, officers took steps to ensure that defendant willingly
consented—a classic attenuation argument.
         The state raised the attenuation argument in brief-
ing and in the hearing before the trial court. Because the
state’s argument implicates the question of law raised below
and on appeal, it is appropriate for us to consider it. See
Boyd v. Legacy Health, 

, 

 (2022)
(holding that the defendant’s arguments were properly
before this court where the arguments were raised in the
defendant’s briefing to the trial court and implicated ques-
tions of law); Sherertz, 

 (holding that this
court may resolve an alternative argument where the argu-
ment “was made in the trial court[,]” “is properly presented
again on appeal[,] and raises a question of law”).
        Even if the attenuation argument had not been
raised below, however, it meets the “right for the wrong rea-
son” exception as described in Outdoor Media Dimensions,

. Under those principles,
   “[f]or us to affirm a trial court’s ruling on a basis other
   than that on which the court relied, (1) ‘the facts of record
   [must] be sufficient to support the alternative basis for
   affirmance’; (2) ‘the trial court’s ruling [must] be consis-
   tent with the view of the evidence under the alternative
   basis for affirmance’; and (3) ‘the record [must] materially
Cite as 

 (2023)                                 501

   be the same one that would have been developed had the
   prevailing party raised the alternative basis for affirmance
   below.’ ”
State v. Booth, 

, 

 (2015), quot-
ing Outdoor Media, 

. As explained below,
the facts of the record are sufficient to support the alter-
native basis for affirmance. That basis is itself consistent
with the trial court’s decision that defendant’s consent was
voluntary: “I believe that his consent was voluntary. I think
indeed there were—they did offer him several opportunities,
explaining to him, making sure that it was a voluntary con-
sent and that he understood his rights and he affirmatively
stated he did and that he was consenting.” And the record
is materially the same one that would have been developed
had the state used the word “attenuation”—the attenuation
argument relies on the officers’ colloquy about the meaning
of consent, which is included in the record as a video record-
ing, was discussed by the parties at the trial level, and was
thoroughly evaluated by the trial court before it made its
ruling. Cf State v. Escudero, 

, 

 (2021) (“Because the attenuation argument is raised for
the first time on appeal, the trial court never engaged in the
fact-specific inquiry on whether the state carried its burden
of proving that [the] defendant’s consent was independent
of, or only tenuously related to, the unlawful police conduct.
Accordingly, because the record may have developed differ-
ently with respect to the exploitation analysis, we decline to
consider the state’s alternative basis for affirmance.”).
         Turning to the substance of the issue, “when a
Miranda violation has occurred, a defendant’s voluntary
consent can attenuate the prior violation if the consent was
either not affected by or was only tenuously connected to
a prior illegality.” State v. Williams, 

,

 (2022) (internal quotation marks omitted). “To
determine if a defendant’s voluntary consent was ‘sufficient
to break the causal chain,’ we consider * * *: the nature of
the violation, the character of the defendant’s consent, and
the causal connection between the violation and the defen-
dant’s consent.” 

 (citations omitted).
502                                               State v. Gold

          First, considering whether the violation was fla-
grant, it was not. Although officers were precluded from
interrogating defendant, there is no question that they were
allowed to seek consent to search after defendant invoked
his right to counsel. See State v. Hatfield, 

, 

 (2011) (Where the law provides that a
criminal defendant’s refusal to consent cannot be admit-
ted for the purpose of incriminating them, such as here, “a
request for consent to search does not constitute interroga-
tion under [the state or federal constitution].”); see also State
v. Shevyakov, 

, 

 (2021). There
is also no question that officers could outline the next steps
of the process, including stating that they were planning
to seek a search warrant and identifying the evidence they
would use in support of that effort. See Hatfield, 

 (finding it permissible that police informed defendant
that “they would apply for a search warrant if necessary”);
State v. Schmidtke, 

, 

 (2018)
(“The officer’s statement merely informing [the] defendant
of the criminal activity for which the officer was investigat-
ing and detaining [the] defendant was not designed to elicit
an incriminatory response or a statement that, by its very
nature, evidenced an investigatory purpose.”). The major-
ity concludes that the police here crossed that fine line,
but a fine line—not a flagrant violation—it is. See State v.
Delong, 

, 

 (2015) (explaining that
an Article I, section 12, violation “can hardly be character-
ized as egregious” where it did not involve “interrogation
techniques designed to break down a suspect’s will” (citing
Miranda v. Arizona, 

, 

, 

 (1966))).
        Next, in weighing the character of the defendant’s
consent, the officers’ statements thoroughly and effectively
ensured that defendant understood consent and communi-
cated that the choice was his. Officers engaged in the follow-
ing conversation with defendant, well after the purported
interrogation occurred:
      “LIEUTENANT DUFFIT: I just want to make sure.
   I wasn’t here initially. When you were read your Miranda
   warning. What does the Miranda warning mean to you, or
   what’s it mean to you?
Cite as 

 (2023)                                  503

     “DEFENDANT: I understand that I have a right to
  remain silent. I have a right to an attorney. But you’re get-
  ting a search warrant, and you’re going to tear my house
  apart so it doesn’t really matter if I remain silent or not.
     “LIEUTENANT DUFFIT: Well, it does. You still have
  the right to remain silent. You have the right to talk to an
  attorney before you talk to us at all. Before you give con-
  sent for anything, okay? And, we, like he explained, we’d be
  applying for and asking a judge for a search warrant so if
  you consent it’s your consent alone, okay? You do not have
  to give consent. You do not have to do that. Do you under-
  stand that? I just want to make sure you understand you’re
  giving consent based on consent not because there’s any
  other promises or fear you have.
     “DEFENDANT: I just fear that you’re going to emo-
  tionally destroy my mother by pulling our house apart
  again and that is what I’m basing this decision on.
    “LIEUTENANT DUFFIT: Okay, what does consent
  mean to you? Do you understand what that means?
    “DEFENDANT: Yes, I understand what consent
  means.
     “LIEUTENANT DUFFIT: No, I think you’re a smart
  guy. And I’m not trying to offend you at all. But I want to
  make sure that you know what that means.
      “DEFENDANT: I am choosing to tell you where this is
  to help my mother. Not for any reason for myself. Because I
  do not want my mother to suffer any more than she already
  is. I am consenting. I understand what that means.
    “LIEUTENANT DUFFIT:              Consenting to show us
  where this device is at?
     “DEFENDANT: Yes.
     “LIEUTENANT DUFFIT [to Detective Dale]: Any fol-
  low up?
      “DETECTIVE DALE: No, just, again, we’re just mak-
  ing sure because you told us ‘no’ before, which is fine, and so
  in those circumstances we have to make it blatantly clear
  and obvious that it’s not because, you know, we’re coercing
  you, or making you promises of any kind.
504                                             State v. Gold

     “DEFENDANT: You are not promising me anything. I
   merely wish to save my mother a little bit of pain.”
The officers informed defendant of the meaning of consent
and confirmed that defendant understood and that he knew
he did not need to consent. While defendant’s invitation to
search was not unprompted, see Delong, 

,
the character of defendant’s consent to produce the Kindle
was knowing and voluntary.
         Finally, we consider the causal connection between
the violation and defendant’s consent. Here, the officers’
conversation with defendant during which they clearly
informed him of his rights served as a significant interven-
ing event that attenuated any prior illegality. See State v.
Unger, 

, 

 (2014) (holding that
police admonitions or warnings, “although not required,
may be helpful when the state seeks to show that it did not
exploit any police misconduct to obtain consent”); State v.
Lorenzo, 

, 

 (2014) (“Such warn-
ings [that an individual need not consent] would make it
easier for reviewing courts to determine that, notwithstand-
ing any prior illegality, the individual knew that he or she
had a constitutional right to refuse consent—and that, if
the individual gave consent, it was voluntary and not the
product of exploitation.”). Moreover, the allegedly unlaw-
ful interrogation in this case did not yield the incriminat-
ing information of the location of the Kindle. To the extent
that there was any doubt as to whether that consent was
causally connected to the majority’s description of the vio-
lation—improperly pressuring defendant to provide incrim-
inating information by “presenting the evidence that they
had gathered against defendant”—defendant himself artic-
ulately explained that his consent to turn over the device
was entirely due to his desire for officers to avoid obtaining
a search warrant: “I just fear that you’re going to emotion-
ally destroy my mother by pulling our house apart again
and that is what I’m basing this decision on.” 

. As defendant explained, the pressure associated with
officers describing the evidence against defendant did not
cause him to crack and provide incriminating information;
he merely hoped to save his mother “a little bit of pain.”
In addition to saying that he understood his right not to
Cite as 

 (2023)                           505

consent, defendant’s explanatory response given in his own
words was itself evidence that he had made a rational deci-
sion, voluntarily and knowingly, under the circumstances
then present. Defendant assessed his options and made an
informed decision based on criteria wholly unrelated to his
own criminal exposure.
        Because I believe that defendant’s consent was
knowing and voluntary and that the taint, if any, was atten-
uated, I would affirm the trial court’s decision denying
defendant’s motion to suppress.