State v. Hernandez

308 Or.App. 783

481 P.3d 959

STATE of Oregon, Plaintiff-Respondent,

v.Jose Antonio HERNANDEZ, Defendant-Appellant.

A166220

Court of Appeals of Oregon.

Argued and submitted May 29, 2019.

January 27, 2021

Zachary Lovett Mazer, 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.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and Sercombe, Senior Judge.

POWERS, J.

In this criminal case, defendant appeals from a judgment of conviction for two counts of fleeing or attempting to elude a police officer, ORS 811.540 (Counts 1 and 6); attempted aggravated murder with a firearm, ORS 161.405, ORS 163.095, and ORS 161.610 (Count 2); unlawful use of a weapon with a firearm, ORS 166.200 and ORS 161.610 (Count 3); and felon in possession of a firearm, ORS 166.270 and ORS 161.610 (Count 4).¹ In his first assignment of error, defendant challenges the trial court's denial of his motion to suppress texts, Facebook messages, and pictures found as a result of the execution of a search warrant of his cell phones. Specifically, defendant argues that the affidavit in support of the search warrant lacked probable cause and was overbroad in violation of Article I, section 9, of the Oregon Constitution. In his third assignment of error, defendant challenges the trial court's denial of his request to waive a jury trial and argues that the court's denial violated Article I, section 11, of the Oregon Constitution. In supplemental briefing, defendant argues that, under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the trial court plainly erred in instructing the jury that it could return nonunanimous verdicts and when it accepted a nonunanimous verdict on Count 2. As explained below, we conclude that the affidavit was insufficient to establish probable cause to search defendant's phones and that the denial of the suppression motion was not harmless as to the convictions for attempted murder, unlawful use of a weapon, and felon in possession of a firearm.² We further conclude that the record does not reflect that the trial court analyzed all of the relevant factors before denying defendant's jury trial waiver that arose during the middle of trial. Finally, we need not reach defendant's Ramos arguments as to Counts 2, 3, and 4, given our disposition on the suppression motion and we reject defendant's structural-error challenge as to the unanimous verdicts for Counts 1 and 6. Accordingly, we reverse and remand the judgment of conviction on Counts 2, 3, and 4; vacate and remand Counts 1 and 6; and otherwise affirm.

We review a challenge to the validity of a search warrant for legal error. State v. Cannon , 299 Or. App. 616, 625, 450 P.3d 567 (2019). In reviewing whether a search warrant was supported by probable cause, "we consider only those facts put before the magistrate in the supporting affidavit, along with reasonable inferences that can be drawn from them." Id . at 618, 450 P.3d 567. We state the facts as recited in the search warrant affidavit that was prepared by Detective Howden.

In October 2016, Sergeant Goodman observed a red Honda and a gray Honda traveling northbound on River Road in Salem. Goodman's attention was drawn to the red Honda, later determined to be driven by defendant, because it was "traveling in excess of the posted 35 mph speed limit." As Goodman traveled behind both Hondas, he ran a check on the license plate number of the red Honda and discovered that the car's insurance had expired. Goodman activated his lights to conduct a traffic stop of defendant for speeding and driving uninsured. Defendant changed lanes and slowed as if he were going to come to a stop, but, before Goodman could change lanes to pull defendant over, the gray Honda rapidly accelerated and attempted to block Goodman from getting directly behind the red Honda. In his police report, Goodman noted that "[i]t was very obvious the driver of the gray Honda was attempting [to] draw my attention to him and away from the red Honda."

As Goodman attempted to drive around the gray Honda to get behind defendant's red Honda, Goodman radioed for additional police to respond. Defendant eventually turned into a Safeway parking lot and, as the car was still moving, he jumped out of the car and ran. Goodman noted that, as defendant exited the car, he "squared his shoulders" toward Goodman in a "pistol shooting stance." Goodman could see "a large unknown black object" in defendant's hand, but, because of the poor lighting, he could not be "100% sure the object in [defendant's] hand was a handgun." Goodman wrote in his police report that "it appeared [defendant] was attempting to fire the weapon he was pointing at me, but for an unknown reason the handgun did not discharge." As defendant was running away from Goodman, he dropped the gun, retrieved the gun from the ground, and subsequently dropped the gun again as he fell through some bushes. When more officers arrived at the scene, defendant finally gave up his attempt to flee, and Goodman took defendant into custody. Afterwards, officers conducted a search of the area and found a woman's watch, defendant's hat, two cell phones, and a Colt 1911 pistol.

Based on the foregoing events, Howden submitted an affidavit seeking to search, seize, and analyze the two cell phones found by the officers for evidence of the crimes alleged against defendant: attempted murder, unlawful use of a weapon, felon in possession of a weapon, felon in possession of a restricted weapon, and fleeing or attempting to elude an officer. Specifically, the affidavit sought to search six categories of information on the phones: communication data; images, audio, and multimedia files; internet-based artifacts; user interaction and digital device information; hidden, encrypted, password protected data; and location information.

In addition to recounting the events of defendant's arrest, the affidavit also described two recorded phone calls that defendant made from jail a couple of days after his arrest concerning his phone: (1) When asked whether he had someone's telephone number, defendant stated, "Uh I don't even have my phone. I fucking, my phone got lost, threw it." (2) When asked whether they got him a new phone, defendant replied, "No."³ The affidavit further provided a detailed description of the six categories of information sought by detectives, and why, in Howden's training and experience, evidence of defendant's suspected crimes would be found in each category of information sought. For example, regarding communication data, Howden averred:

"I know from my training and experience that suspects of Attempted Murder, Unlawful Use of a Weapon, Felon in Possession of a Firearm, Felon in Possession of a Restricted Weapon, and Fleeing or Attempting to Elude a Police Officer will often communicate with others regarding buying or selling weapons and firearms. I also know those persons will often communicate about their opinions of law enforcement and about what they would do if the police attempted to apprehend them. I also know that viewing the communications of those suspects often gives a glimpse into the mindset, temperament, and intent of that person."

Similarly, regarding images, audio, and multimedia files, Howden stated:

"I know from my training and experience that suspects of Attempted Murder, Unlawful Use of a Weapon, Felon in Possession of a Firearm, Felon in Possession of a Restricted Weapon, and Fleeing or Attempting to Elude a Police Officer will often take photos and videos of them possessing firearms and weapons. I also know they will often take photos of firearms and weapons to show to others, via electronic communication, for the purposes of selling and/ or trading those firearms and weapons."

Based on Howden's affidavit, a magistrate approved the search warrant. In executing the warrant, officers seized several texts, Facebook messages, and pictures.

Defendant moved to suppress the evidence found on his phones under Article I, section 9, and the Fourth Amendment to the United States Constitution, asserting among other arguments that the affidavit did not establish probable cause to search the phones.⁴ Defendant contended that the events surrounding his arrest were the result of a spontaneous encounter and not a planned occurrence. As such, defendant argued that there was no evidence that he "had planned to try [to] elude and shoot at Goodman" on the night in question. Further, because the firearm was already in police possession, defendant asserted that the police had all the evidence necessary to charge him. The trial court denied the motion and, following a jury trial, entered a judgment of conviction for the offenses described above.

On appeal, defendant largely renews the suppression arguments that he made before the trial court with respect to Counts 2, 3, and 4.⁵ Specifically, defendant asserts that "nothing in the affidavit indicates that defendant's phones played any role in the events of October 14, 2016." Apart from recounting the events and defendant's jail phone calls, defendant contends that "the entire premise of Howden's affidavit is what ‘often’ happens or ‘may’ happen and what it is ‘possible’ to recover from a device." Those "abstract assertions," according to defendant, are not connected to the "specific facts or circumstances of this case." The state argues that the affiant's training and experience established that "someone who obtains a firearm illegally (because his felon status precludes legal means of doing so) or for use in conjunction with crimes will use the internet and electronic communication to facilitate a non-traditional purchase." The state contends that that "general...