State v. Rose

555 P.3d 336

334 Or.App. 66

STATE of Oregon, Plaintiff-Respondent,

v.Gary Lee ROSE, Defendant-Appellant.

A176443

Court of Appeals of Oregon.

Argued and Submitted October 13, 2023

July 31, 2024

Clackamas County Circuit Court, CR1200025; Thomas J. Rastetter, Judge.

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest J. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, and Pagan, Judge, and Jacquot, Judge.

AOYAGI, P. J.

₆₈In 2011, while executing a search warrant on defendant’s cellphone, a police officer discovered sexually explicit photos and videos of a child, E, on a micro-SD memory card inside the phone. Defendant was subsequently tried and convicted of various crimes, after a trial at which the images from the SD card were admitted into evidence. In 2019, we reversed defendant’s convictions and remanded for a new trial for reasons unrelated to this appeal. On remand, defendant moved to suppress the images from his phone, arguing that the 2011 warrant was invalid because it was insufficiently particular under State v. Mansor, 363 Or. 185, 421 P.3d 323 (2018), which announced heightened particularity requirements for warrants to search digital data. The state at that point obtained a new warrant to search the cellphone and SD card, which were in police storage. The 2019 warrant listed the SD card—which had been removed from the phone during the 2011 search and stored separately—as a separate item to search. Execution of the 2019 warrant resulted in re-discovery of the same sexually explicit photos and videos. Defendant filed additional motions to suppress, challenging both the 2011 warrant and the 2019 warrant. All of defendant’s motions were denied. The images were again admitted into evidence at trial, and defendant was convicted of 13 crimes.

Defendant appeals, raising six assignments of error. Our disposition of the first two assignments of error, challenging the suppression rulings, makes it unnecessary to reach the other four. As discussed below, we conclude that the 2011 search was unlawful, because the search command in the 2011 warrant was not specific enough under Mansor, requiring suppression of the evidence from the 2011 search. We further conclude that the 2019 warrant was tainted by the 2011 illegality, requiring suppression of the evidence from the 2019 search. Accordingly, the trial court erred in denying defendant’s motions to suppress, and we must reverse and remand yet again.

I. FACTS

On December 18, 2011, nine-year-old E reported to her aunt, Volk, that she had been sexually abused by ₆₉defendant, who was her mother’s boyfriend. E was taken to the hospital the same day, where the police began an investigation. Deputy Case spoke to several witnesses at the hospital. Volk told Case that she had noticed earlier that day that E seemed unusually withdrawn and was not eating well, so she asked E if something was wrong. E responded that her "privates hurt" and then graphically described sexual abuse by defendant. Case asked E’s mother if she believed E’s allegations, and she responded that E did not smirk like she normally does when lying. While at the hospital, Case seized defendant’s cellphone.

On December 20, E was interviewed by McVay at the Children’s Center of Clackamas County. E said that defendant had "pic- tures of naked girls" on his cellphone and had showed her naked girls in underwear and no bras on his cellphone after touching E inside her vagina. E also described incidents of abuse in which defendant (1) directed E to use his cellphone to videorecord herself peeing in the bathroom, which she did; (2) showed E a video on his cellphone of a woman masturbating; and (3) showed E a picture on his cellphone of someone peeing into another person’s mouth.

On December 22, 2011, Detective Voss applied for a warrant to seize and search defendant’s cellphone. In his affidavit, Voss described the evidence from Case’s investigation. He also attested to knowing from training and experience that people save pictures and videos on their cellphones; that "most" cellphones can store pictures and videos "in the phone’s memory"; that people use cellphones to communicate by text message and sometimes attach pictures or videos, which "can be forms of evidence"; and that "names and phone numbers collected out of the memory of cellphones can provide investigators with information that could assist in the apprehension of wanted subjects, lead to other potential witnesses or lead to other persons who view child pornography." Voss asserted that he had probable cause to believe that defendant’s "black Cricket LG cell phone" that Case had seized at the hospital contained evidence of the crimes of using a child in display of sexually explicit conduct (ORS 163.670), second-degree encouraging child sexual abuse (ORS 162.686), endangering the welfare 1₇₀of a minor (ORS 163.575), and first-degree unlawful sexual penetration (ORS 163.411).

The warrant was issued. It authorized officers to "search, seize, analyze and test" "a black Cricket LG cellphone that is stored in the Clackamas County Sheriff’s Office (CCSO) Property Room under CCSO case #11-37846." Its only search command was to search for "[e]vidence of violation of’ the four crimes listed above.

As part of executing the warrant, Detective Giddings conducted a forensic examination of defendant’s cellphone. Giddings did not find any incriminating evidence in the phone’s built-in memory, but he found sexually explicit photos and videos of E, as well as photos and videos of females urinating or masturbating and images of nude or partially clothed children, on a removeable micro-SD memory card that he found inside the phone. The SD card was located beneath the battery compartment and could be accessed only by removing the back of the phone.

Defendant was charged with various offenses against E, and the images, or testimony about the images, from his cellphone were admitted as evidence at trial. Defendant was convicted in 2013. He appealed, and, in 2019, we reversed his convictions and remanded for a new trial for reasons unrelated to this appeal. State v. Rose, 296 Or App 99, 437 P.3d 1144 (2019).

On remand, defendant moved to suppress the direct and derivative evidence found in the 2011 search of his cellphone, including the SD card and the photos and videos. He argued that the warrant was insufficiently particular under Mansor, which had been decided during the pendency of his first appeal. Among other arguments, he contended that the warrant was not specific enough regarding the evidence sought and that it authorized a search of the cellphone but not the SD card.

At that point, the state sought a new warrant. Detective Fich, who had no previous involvement in the investigation, prepared the 2019 warrant application. Fich reviewed Case’s report and other materials that predated the 2011 warrant application. He did not review anything 1₇₁that related to or postdated the 2011 search, with one exception: He did review the "first section" of Giddings’s report, which described Giddings’s physical removal of the SD card from the cellphone during the 2011 search. Fich reviewed nothing else regarding the 2011 search and did not know what was found in the 2011 search.

In his affidavit, Fich described the 2011 police investigation. He also attested to knowing from training and experience that people save photographs and videos on their cellphones and "related personal digital storage media" and that photos or videos "created or used for purposes of sexual gratifica- tion" are likely to be found on cellphones and associated devices and may include depictions of the phone’s owner or "others, including, in this case, [E]." Fich asserted that he had probable cause to believe that evidence of four crimes—using a child in display of sexually explicit conduct, second-degree encouraging child sexual abuse, first-degree sexual abuse, and first-degree unlawful sexual penetration—would be found on defendant’s cellphone "and the 2GB Micro SD Card that [Giddings] removed from the cellular telephone."

The warrant was issued. It described the items to be seized, searched, and analyzed as follows:

"One (1) black Cricket LG cellular telephone, bearing serial number 104KPTMO112385, currently stored in the Milwaukie Police Department, 3200 SE Harrison Street, Milwaukie, OR, 97222, under Milwaukie PD case #11-5112, PIC #27, Item #1; and

"One (1) 2GB Micro SD Card, currently stored in the Milwaukie Police Department, 3200 SE Harrison Street, Milwaukie, OR, 97222, under Milwaukie PD case#l 1-5112, PIC#27, Item#2."

It commanded officers to search for evidence of the four crimes listed above, for the time period from September 12, 2011, to December 18, 2011, including "[p]hotographs and videos of [E], photographs and videos of [E] engaged in sexually explicit conduct or in any state of undress or engaged in urinating," and "[p]hotographs and videos shown to [E by defendant] described as pictures of naked girls, a video of a woman masturbating, and a photograph of someone urinating into another person’s mouth."

₇₂Under authority of the 2019 warrant, Giddings conducted a new forensic examination of defendant’s cellphone and SD card. Giddings discovered the same incriminating photos and videos as he had in 2011.

The state then responded to defendant’s motions to suppress. The state argued that defendant’s motions based on the 2011 warrant were "moot" given the 2019 warrant, which it contended was sufficiently particular under Mansor. Defendant disagreed. The court agreed with the state, denying defendant’s motions but "without prejudice to move against the new warrant."

Defendant filed a second...