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Oregon Supreme Court Clarifies Test to Determine When Person Becomes Agent of the State and Rules Jailhouse Snitch Was Agent, Requiring Suppression of Defendant’s Statements

by Anthony W. Accurso

The Supreme Court of Oregon upheld a Court of Appeals decision ordering a new trial for a defendant who was denied access to counsel when questioned by a jailhouse snitch who was acting as an agent of the State by attempting to elicit incriminating statements.

Lynn Edward Benton was under indictment and held in the custody of Clackamas County in 2015 under suspicion that he conspired with two other people, Campbell and Jaynes, to kill Benton’s wife, Debbie Lee Benton. While in custody, he was housed next to, and worked with, another prisoner named Layman.

During their time together from April to July, Benton would occasionally provide details about his case to Layman. In early June, Layman contacted his lawyer and instructed him to contact the District Attorney’s office about incriminating statements made by Benton. He eventually had three meetings with prosecutors and police agents, on June 16, July 2, and July 30, where he provided information to prosecutors. After the third meeting, “extended negotiations” occurred, culminating in a January 2016 agreement for Layman to testify against Benton at trial in exchange for lesser sentences on several charges he faced.

Benton filed a pretrial motion to exclude Layman’s testimony, arguing Layman acted as an agent of the State when he solicited statements from Benton—depriving him of his right to counsel during an investigative interview under Article I, section 11 of the Oregon Constitution. The trial court denied this motion, ruling Layman was not the State’s agent.

The “State’s case at trial was based largely on layman’s testimony,” and Benton was found guilty of two counts of conspiracy and two counts of aggravated murder. The latter two were merged into a single conviction.

On appeal, the Court of Appeals reversed the convictions, finding that after the second meeting, Layman exhibited “objective manifestations” of being the State’s agent, and all statements made by Benton to Layman after that date should have been suppressed.

On appeal by the State, the Supreme Court affirmed the decision of the lower court. It noted that Article I, section 11 of the Oregon Constitution requires a defendant’s counsel to be notified prior to any post-arrest investigative interview. State v. Prieto-Rubio, 376 P.3d 255 (Ore. 2016). The remedy for violating this requirement is “the exclusion of any prejudicial evidence obtained as a result of that violation.” Id.

The protection is against all such pretrial interrogations, which can include the situation when “a private citizen acts as an agent of the police,” a determination based on whether the police are “directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the informant’s activities.” State v. Smith, 791 P.2d 836 (Ore. 1990). This test examines several non-exclusive factors, including “whether there was an agreement between the informant and the state; whether the state actively instructed, encouraged, or discouraged the informant; and what motive led the informant to gather evidence.” Id.

In a related case under Article I, section 9 (protecting against unreasonable searches), the Supreme Court modified the analysis under the Smith test by using common law principles of agency, “emphasiz[ing] the ‘objective statements and conduct of the parties’ in evaluating whether an agency relationship had formed, rather than on the ‘subjective motives of the principal and agent, or on what the principal knew or thought that the agent might do.’” State v. Sines, 379 P.3d 502 (Ore. 2016). The result is that the determination of whether a person acted as an agent of the State for purposes of the exclusionary rule is governed by the Smith test in conjunction with common-law agency principles that “can provide substantial assistance,” as explained in Sines.

Applying Smith, guided by Sines, the Court analyzed whether, or when, Layman acted as the State’s agent. Though Layman had previously provided information to the State in exchange for a “benefit,” merely being aware of this possibility did not make him an agent of the State from the moment he began talking to Benton, according to the Court. The “state’s practice of sometimes rewarding informants for their cooperation does not, by itself, render every potential informant a state agent, even when the individual informant has a history of collaborating with the state.” State v. Lowry, 588 P.2d 623 (Ore. 1978).

During the first meeting on June 16, Layman provided information and requested compensation in exchange. The prosecution’s investigator took notes, made no agreement for compensation, and advised Layman near the end of the meeting, “Benton’s represented by attorneys, and we don’t want you to think … the fact that you’re talking to us that we would in any way direct you, or tell you to have any conversations with him.”

The second meeting on July 2 was “markedly different from the first,” stated the Court. It began as a negotiation for compensation, and the trial court found that the State “didn’t believe this was to be anything other than a discussion regarding the cooperation agreement.” Though no definitive agreement was reached, Layman provided more information and indicated that, some of the time, he had initiated conversations with Benton about his case, instead of just passively receiving information. The investigator expressed more interest in specific case details, and though he provided an admonishment similar to the one in the first meeting, he “did not tell Layman to stop questioning defendant.”

The Court summarized its conclusion as follows: “the state’s conduct up to and including the second proffer meeting, taken as a whole, objectively conveyed that Layman was authorized to continue questioning defendant, that he should direct his questioning to certain topics, and that he could expect that he could earn a reward in his own cases from the state if he learned enough information and agreed to testify. That conduct rendered Layman a state agent with respect to defendant. Layman’s questioning after July 2, 2015, violated defendant’s, right to counsel, and the trial court erred in denying defendant’s motion to suppress defendant’s statements after that date.”

Accordingly, The Court affirmed the decision of the Court of Appeals and remanded the case to the trial court for retrial. See: State v. Benton, 534 P.3d 724 (Ore. 2023).  

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