State v. Hawthorne

316 Or.App. 487

504 P.3d 1185

STATE of Oregon, Plaintiff-Respondent,

v.Denzel Cortez HAWTHORNE, Defendant-Appellant.

A168045

Court of Appeals of Oregon.

Argued and submitted October 19, 2020.

December 22, 2021

David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeVORE, P. J.

Defendant appeals a judgment of conviction for murder, first-degree robbery, and unlawful use of a weapon. ORS 163.115 ; ORS 164.415 ; ORS 166.220 (2015). The police identified defendant as a suspect within a couple hours of the murder at issue. Before they obtained a search warrant, detectives asked that defendant's cell phone service provider "ping" defendant's phone's location to help locate the fleeing suspect. On appeal, defendant first assigns error to the trial court's denial of his motion to suppress evidence resulting from that ping. He argues that the trial court erroneously concluded that the warrantless ping was justified by exigent circumstances. The state cross-assigns error, arguing that the trial court erred initially in concluding that defendant had a protected privacy interest in the cell-site location information generated by his service provider. The state argues that, because defendant lacked a privacy interest, the ping was not a search under either Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution.

Defendant also challenges the proportionality of his sentence, arguing that the trial court failed to address the constitutional implications of defendant's intellectual disability under State v. Ryan , 361 Or. 602, 396 P.3d 867 (2017).¹

We conclude that eliciting the phone's location was a search under Article I, section 9, but that, under the circumstances of this case, the warrantless search was justified by exigent circumstances. We also conclude that the trial court did not err in imposing defendant's sentence, because the record shows that the court considered evidence of defendant's intellectual disability and its effect on the proportionality of his sentence. Accordingly, we affirm.

I. FACTS

The parties do not dispute the following facts. Defendant is from Detroit, Michigan, and was attending college in North Dakota. In May 2016, while defendant was visiting Oregon, he began buying marijuana from W.

During that visit, defendant purchased a pound of marijuana and stayed the night at W's parents’ home, where W lived with his girlfriend, J. Defendant and W agreed that defendant would return to school and mail money to W, and W would then mail additional marijuana to defendant. Defendant and W's relationship deteriorated when W mailed less marijuana than promised on multiple occasions.

Defendant began sending threatening social media messages to J.² On May 22, 2016, defendant messaged J that "if I gotta come down there it's going to get ugly." Defendant's messages to J, who was pregnant, escalated. He messaged J that she would "suffer the same consequences" as W and that, if she kept "talking[,] when I come down there * * *, we're going to run a train on you" but that, "if your baby daddy sending my shit like he suppose to, then you have no worries." On June 13, 2016, defendant warned J, "If I was you, I wouldn't be around [W] for a while because I just * * * got off the phone with my uncle and he's going to get a little visit soon. If you was smart, you would keep your distance."

On June 28, 2016, W bought J a new car, and J posted a picture of the car on social media. Within a few days, two of the car's tires were slashed while the car sat in their driveway overnight. Defendant took credit for having the tires slashed. On July 28, 2016, defendant messaged J, stating:

"Can I come to the house and pick [the marijuana] up or will you all send it, but it's no way I'm not about to let that shit slide. All that shit talking just feeding me energy to do what I got to do which would leave one of you all a single parent. * * * If I don't hear from him tonight, I'll get the * * * point and from then on it's bomb away. It's a dirty game that I really think is a joke. You only get one life."

Defendant followed up:

"[W] gonna be the death of you all. I have given him a chance to make it right but he seem to take me for a joke. So let's see what happens next. Fuck them petty-ass tires.

Baby [E] might not never know her dad. And if he hides, then take a guess who will be next in line."

When J told defendant to leave her alone, he responded:

"[W] couldn't even answer my phone so I'm back on top and when shit start getting real, don't beg, don't apologize, don't cry, just prepare. All you all got to do is give me my shit and this can all be over.

"* * * * *

"I really hope you all don't bring that baby to the house because when I cocktail bomb that bitch, the first person running out is getting shot.

"* * * * *

"That mean I'm ready to do life for this shit. You all taking money out of my family's mouth so that means fuck to family. I hope your fucking baby dies in your stomach from stress since you all don't want to send my shit."

Defendant and his friend, Carrera, drove from North Dakota, and, shortly before 8 p.m. on August 1, showed up at W's parents’ home. W's mother, L, and father, B, were home watching a movie with two friends, but neither W nor J was home. Defendant and Carrera walked into the home without knocking. Defendant held a pistol and Carrera held a shotgun. When defendant learned that W was not home, he became angry and demanded either payment or the marijuana he was owed. He put his pistol to B's head and had B lead him to the garage in search of marijuana. When they returned from the garage, defendant was carrying a bag with marijuana in it, and defendant and Carrera placed valuables into a bedsheet.

At that point, W returned home and opened the door. L shouted to W to run. Carrera ran after W, returned about a minute later, and told defendant that he "took care of it." Although Carrera had not actually caught up with W, W's parents understood Carrera's report to mean that he had killed W. B approached defendant, grabbed the bedsheet, and shoved defendant down a hallway. B broke a piece off of the handle of Carrera's shotgun and moved to tackle defendant. Defendant shot B in the head, then ran with Carrera out of the house.

B was transported to the hospital, where he later died. Deputies arrived at the scene at 7:56 p.m. and began interviewing witnesses and preparing a search warrant. Neighbors reported seeing the two suspects fleeing with their weapons in a red Pontiac. The detectives located W and J and began interviewing them shortly after 10 p.m. The detectives learned that W and J had a history with defendant. W provided defendant's phone number. W also showed detectives texts between defendant and W from 8:35 p.m., after the shooting. In a heated exchange of messages, the men arranged to meet at another address for an apparent confrontation. In an hour-long interview, J provided detectives with her phone and the history of messages between defendant and J.

After receiving defendant's phone number and reviewing defendant's threatening messages to W and J, detectives contacted defendant's service provider, AT&T, at 11:14 p.m. Pursuant to the Stored Communications Act (SCA), 18 USC § 2702(c)(4), detectives asked AT&T to ping defendant's phone to provide its general location.³ AT&T complied. The location was close to the Budget Inn Motel in Woodburn.

Detectives spotted a red Pontiac in the motel's parking lot with Illinois plates registered to Carrera. They confirmed with motel management that defendant had checked in. A search warrant for the motel room was approved at 5:15 a.m., and defendant was taken into custody at 5:50 a.m.

II. PROCEEDINGS

Prior to trial, defendant moved to suppress the cell-site location information (CSLI) from AT&T and any derivative evidence. Defendant argued that, under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, defendant retained a privacy interest in his real-time CSLI. Defendant argued that, because he retained a privacy interest, asking AT&T to ping his phone's location constituted a search requiring a warrant. Defendant argued that no exception to the warrant requirement was available under the circumstances because any exigency from the 8:00 p.m. shooting or later text messages had dissipated by the time AT&T pinged his phone at 11:14 p.m.

The trial court concluded that defendant retained a privacy right as to his real-time location as indicated by his CSLI, but that exigent circumstances justified the warrantless ping of defendant's phone because the location information was necessary to prevent physical harm to the persons targeted by defendant's various threats.⁴

In a jury trial, defendant was convicted of felony murder, ORS 163.115 (a lesser-included offense), two counts of first-degree robbery, ORS 164.415, and five counts of the unlawful use of a weapon with a firearm, ORS 162.220.⁵ Defendant was sentenced to the mandatory minimum sentence of life with the possibility of parole after 25 years for his felony murder conviction, and five consecutive years for his first-degree robbery and unlawful use of a weapon convictions.

On appeal, defendant renews his arguments from his motion to suppress, in which he contends that the circumstances were insufficiently exigent to justify the warrantless ping of his phone's location. He argues that any exigency had dissipated by the time detectives requested the ping, three hours after the shooting. By that time, defendant argues that detectives had found...