State v. Serrano

324 Or.App. 453

527 P.3d 54

STATE of Oregon, Plaintiff-Respondent,

v.Jorge Ulises SERRANO, Defendant-Appellant.

A173250

Court of Appeals of Oregon.

Argued and Submitted January 24, 2022.

March 8, 2023

Sara A. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

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

Before Tookey, Presiding Judge, and Lagesen, Chief Judge, and Aoyagi, Judge.^*

TOOKEY, P. J.

Defendant appeals a judgment of conviction, by nonunanimous verdicts, for two counts of first-degree rape, ORS 163.375 (Counts 1 and 3); and by unanimous verdicts for three counts of second-degree sexual abuse, ORS 163.425 (Counts 4, 7 and 8); one count of using a child in a display of sexually explicit conduct, ORS 163.670 (Count 5); and one count of first-degree encouraging child sexual abuse, ORS 163.684 (Count 6).¹ For the reasons that follow, we reverse defendant's conviction on Count 5 and reverse and remand his convictions on Counts 1, 3, 4, 6, 7, and 8.

I. BACKGROUND

We summarize the facts as expressly or implicitly found by the trial court. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). Most of the facts are procedural and undisputed.

Defendant's convictions stem from evidence police obtained through searches of the data from defendant's cell phone pursuant to two search warrants, the first in December 2018, and the second in February 2019. The first warrant was secured based on statements by CB—who is not a victim in this case. CB reported to police in 2018, that, in 2015, at the age of 18 or 19, she had had sexual encounters with defendant. CB filed the police report after learning that images and videos from those 2015 encounters had been uploaded without her permission to the pornography internet site PornHub during a time frame from October 2017 through December 2018. Through investigation, police learned defendant's username and that defendant had also posted videos of CB on Hclips, another pornography website.

Several weeks after the initial investigation, defendant attempted to initiate communication with CB on Snapchat, a communication platform. In text conversations between defendant and CB and between defendant and a police officer posing as CB, defendant stated that he had had vaginal and anal intercourse with CB when she was unconscious and that he had multiple photos and videos of her on his computer and on his old and new cell phones. In those text conversations, defendant sent a photo of himself and revealed his employment and that he had posted videos of CB on Pornhub.

Based on that information, in December 2018, police sought and obtained the first warrant for a search of defendant's cell phones and computer for evidence of first-degree rape and first-degree sodomy of CB. The warrant commanded a search of defendant's residence and car for his cell phones and computer. It authorized a seizure and search of defendant's digital devices for the following: evidence "related to the crimes under investigation" in media form, including pictures and videos and the recording, storing, duplication, and transmitting of pictures, videos, and associated data; evidence of defendant's internet usage for access and browsing of Pornhub and Hclips during the period October 2017 through December 2018; evidence of defendant having connected his cell phone to other devices to transfer the related files; evidence of defendant having uploaded videos from Pornhub and Hclips to cloud storage; evidence of defendant's communications with CB during the period March 2015 through December 2018; evidence of information identifying the user and/or owner; evidence of contact information for users and associates; the user's identification, contact information, and location between the dates of March 2015 through April 2015; evidence of "ownership, use, and access" of and to defendant's Snapchat, Pornhub and Hclip accounts during specific time frames; and "[a]ny other evidence of the crimes of ORS 163.405 Sodomy I and ORS 163.375 Rape I."

Officers were able to execute the first warrant and retrieve the data from defendant's cell phone. An investigation of that data disclosed images of potential victims other than CB, which, in turn, led police to seek and execute the second search warrant, in February 2019.² The second warrant authorized a complete search of defendant's cell phone, which revealed information that led to the charges and convictions of defendant in this case, for engaging in nonconsensual sexual intercourse or contact with two adult women, II and KT, and intercourse and sexually explicit conduct with a 17-year-old girl, AG, and capturing sexually explicit conduct with AG on video.

Defendant filed a motion to suppress evidence obtained from the searches of the data from his cell phone, contending among other points that the warrants violated the particularity requirement of Article I, section 9, of the Oregon Constitution. The trial court denied the motion, concluding that the warrants were sufficiently particular. Defendant also filed a motion for a judgment of acquittal on Count 5, using a child in a display of sexually explicit conduct, and a motion to sever trial of the charges relating to AG from trial of those relating to the adult victims, II and KT, both of which the trial court denied. On appeal, defendant challenges the trial court's denial of his motion to suppress, the trial court's denial of his motion for a judgment of acquittal, and the trial court's denial of his motion to sever.

II. DEFENDANT'S CHALLENGE TO THE TRIAL COURT'S DENIAL OF HIS MOTION TO SUPPRESS

Defendant does not dispute that the first search warrant was supported by probable cause that defendant had committed rape and sodomy of CB. But defendant contends in his first and second assignments of error that that probable cause only authorized a warrant for the search of defendant's cell phone for material related to offenses against CB that were known to have been committed in a particular time frame. Although defendant concedes that some of the first warrant's commands were specific to evidence of the crimes involving the victim CB during the relevant time frame, he contends that other portions of the first warrant allowed a more generalized search that was not adequately specific. In particular, on appeal, defendant cites the command to search defendant's digital "media" for "evidence related to the crimes under investigation."³ Defendant contends that, because the warrant did not limit the search of media to the crimes of a sodomy and rape against CB during a particular time frame, the warrant lacked specificity and authorized an overbroad search, and that the trial court therefore erred in denying his motion to suppress evidence obtained through the searches.⁴ See Or Const., Art. I, § 9 (a search warrant must "particularly describ[e] the place to be searched, and the person or thing to be seized").

We review the trial court's ruling on defendant's motion to suppress for errors of law. State v. Stephens , 184 Or. App. 556, 560, 56 P.3d 950 (2002), rev. den , 335 Or. 195, 64 P.3d 576 (2003). The Supreme Court explained in State v. Bridewell , 306 Or. 231, 247, 759 P.2d 1054 (1988), that "[t]he goals of constitutional search and seizure provisions are to restrain the government[.]" Article I, section 9, enshrines that goal by requiring that a warrant must "particularly describ[e] the place to be searched, and the person or thing to be seized." The "particularity requirement" was intended to "prevent the use of general warrants" by "ensur[ing] that a warrant describe[s] with particularity the person to be seized, the place to be searched, or the thing to be seized." State v. Carter , 342 Or. 39, 44, 147 P.3d 1151 (2006). Thus, a warrant authorizing a governmental search or seizure of places or things "must allow the executing officer to identify with ‘reasonable effort’ the things to be seized ‘for which a magistrate has found probable cause.’ " State v. Mansor , 363 Or. 185, 212, 421 P.3d 323 (2018) (quoting State v. Trax , 335 Or. 597, 602-03, 75 P.3d 440 (2003) ).

A search of digital devices necessitates additional precautions. The court in Mansor explained that, with regard to digital devices, to comport with the particularity requirement of Article I, section 9, a search warrant must

"identify, as specifically as reasonably possible in the circumstances, the information to be searched for, including, if relevant and available, the time period during which that information was created, accessed, or otherwise used ."

Id . at 218, 421 P.3d 323 (emphasis added).

We agree with defendant that the search command for "media" in the first warrant, read in isolation from the affidavit, fell short for lack of specificity. The search command did not specify that the search was limited to media relating to CB. Nor did the command list a time or date range for the media materials, although that information was known by the state. The fact that the media command limited the media search to "evidence related to the crimes under investigation" did not cure the overbreadth. See State v. Bock (A169480) , 310 Or. App. 329, 336, 485 P.3d 931 (2021) (citing the Supreme Court's caution in Mansor , 363 Or. at 213, 421 P.3d 323, that a warrant's command to find "evidence of a particular crime" does not create specificity sufficient to pass constitutional muster).

But the state is correct that the affidavit cured the lack of specificity in the first warrant.⁵ See State v. Turay , 313 Or. App. 45, 57, 493 P.3d 1058, rev. allowed , 369 Or. 69, 499 P.3d 1281 (2021) ("In assessing whether the commands are sufficiently particular, we consider not only the warrant itself but [the] affidavit in support of the warrant[.]"). The affidavit...