State v. Thompson, CC 14CR29087 (SC S068639)

370 Or. 273

518 P.3d 923

STATE of Oregon, Respondent on Review,

v.Darius Leshawn THOMPSON, aka Darius Lawshawn Thompson, Petitioner on Review.

CC 14CR29087 (SC S068639)

Supreme Court of Oregon.

Argued and Submitted March 10, 2022.

October 13, 2022

Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

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

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Baldwin, Senior Judge, Justice pro tempore.^**

BALMER, J.

In this criminal case, defendant robbed someone with a knife, and the victim shot defendant. Defendant sought treatment in a hospital, where police officers questioned him. An officer seized defendant's cell phone as likely containing evidence of the shooting and other crimes. The officer did so without a warrant, fearing that, if he did not seize the phone, defendant could otherwise destroy the phone or its contents. Police kept the phone for five days before applying for a warrant to seize and search the phone. Once they had the warrant, police searched the phone and found records of calls and messages related to the robbery and shooting. They then used that information in questioning defendant, eliciting statements that defendant argues were incriminating. Before trial, defendant moved to suppress the phone and all derivative evidence, and the trial court denied the motion. A jury found defendant guilty of first-degree robbery, among other crimes, and the Court of Appeals affirmed the resulting conviction. State v. Thompson , 308 Or App 729, 481 P.3d 921 (2021).

We allowed review, limited to the issues raised by the motion to suppress, including preservation questions at trial and on appeal. We first accept—and agree with—the state's concession that the Court of Appeals erred in holding that it did not need to consider three statements that defendant claims should have been suppressed because he identified them only in his reply brief in that court, and not in his opening brief. Id. at 737, 481 P.3d 921. We then conclude, for the reasons explained below, that keeping defendant's phone for five days without a warrant was unreasonable in the circumstances presented here and was, therefore, unlawful. We also conclude that defendant adequately raised and preserved his objection to the admission of evidence derived from the phone's unlawful seizure, and that the trial court erred in denying defendant's motion to suppress. Finally, we evaluate whether the admission of evidence that should have been suppressed prejudiced defendant, and we conclude that it did not. We therefore affirm defendant's conviction.

I. BACKGROUND

We present the facts as found by the trial court, because, in reviewing the denial of a motion to suppress, we "are bound by the court's factual findings if there is constitutionally sufficient evidence to support them." State v. DeJong , 368 Or. 640, 643, 497 P.3d 710 (2021). "If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion." State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993).

Defendant used a knife to rob another person. He was aided by an accomplice, Beacock, also known as "Pree." At some point during the robbery, the victim drew a gun and shot defendant in the leg.

Defendant went to a hospital for treatment of his gunshot wound. When he arrived, he presented false identification. Because defendant had been shot, hospital staff contacted the police. Officer Robertson responded, along with other officers. Robertson recognized defendant from prior encounters and realized that defendant had not given his true name to the hospital. The local dispatch center had received no other reports of persons being admitted to a hospital in the area with a gunshot wound that night.

Robertson questioned defendant briefly and asked defendant about the wound. Defendant claimed that he had been the victim of a drive-by shooting. Robertson took defendant's cell phone, believing it would contain evidence related to the shooting and to the possible crime of identity theft (based on defendant's presentation of false identification when he was admitted to the hospital). Robertson was concerned that, if he did not seize the phone, defendant would destroy the phone or erase its data. Robertson did not have a warrant to seize the phone. He did not search the phone at that time.

Over the next five days, police investigated the robbery and shooting, including by locating and interviewing the victim. On the fifth day, Robertson applied for and obtained a search warrant for the phone's contents. Robertson then searched defendant's phone and found, among other things, records of calls between defendant and Pree, including five calls on the night of the shooting, and one text message from Pree to defendant early the following morning that said, "Hey bro, you all right?" The police arrested defendant the day after searching the phone.

Following defendant's arrest, Robertson and another officer interviewed defendant. At first, defendant repeated his claim that he had been the victim of a drive-by shooting and claimed that he had never spoken to Pree on the phone and would not recognize a picture of Pree. After more questioning, however, defendant changed his story and admitted to being present during the robbery. He claimed that Pree, not defendant, had attempted to rob the victim and that Pree, not defendant, had wielded the knife. In this version of the story, defendant had been "a bystander" and had "r[u]n off," and Pree had "just wanted [defendant] there for * * * protection."

A few minutes later in the interview, Robertson mentioned that the police had searched defendant's phone. Robertson suggested that the records of calls and texts between defendant and Pree contradicted defendant's earlier claim that he had never talked with Pree on the phone. After the phone was brought up, the interview continued, and defendant and Robertson had several exchanges which defendant now argues are prejudicial and which we discuss below.

Defendant was indicted on multiple charges, including attempted aggravated murder, robbery, assault, unlawful use of a weapon, and identity theft. Before trial, defendant moved to suppress "the seizure of defendant's cell phone, as well as all derivative evidence." Defendant argued that Robertson did not have probable cause to seize the phone and, furthermore, that no exigency justified keeping the phone for five days. In defendant's view, even if the phone's initial seizure were lawful, the state was permitted to retain the phone for only the time it would have taken to get a search warrant—six to 10 hours, according to Robertson.

The state responded that both the initial seizure and the retention of the phone for five days were lawful. It contended that Robertson did have probable cause to believe that the phone contained evidence relevant to both the shooting and the identity theft, and that exigencies justified the seizure and retention because the phone or its data could be destroyed if it were not seized and retained.

The trial court agreed with the state and denied defendant's motion to suppress. The court concluded that Robertson had probable cause to seize the phone, at least as to the crime of identity theft, and possibly as to the shooting as well, and that the five-day retention was justified because it was part of "an active, ongoing investigation."

Later during the same hearing, defendant argued a series of motions in limine seeking to exclude parts of a video recording of defendant's police interview, which the state wanted to play for the jury. Among the parts of the interview defendant sought to exclude, defendant identified certain comments he made after Robertson had referred to the contents of defendant's phone, and that we describe in detail below. Even though the court had already denied his motion to suppress, defendant argued, "for the purposes of appeal," that that part of the interview was implicated in the motion to suppress. If Robertson had not been able to confront defendant about what was on his phone, defendant explained, "the interview would have flowed differently," and specific statements in the interview following that moment were therefore derivative of the cell phone's seizure. The court expressly recognized that defendant was "preserving the argument with respect to [the court's] ruling on the phone with respect to those statements as well." The state did not object or disagree with the trial court's characterization that defendant was preserving the argument.

The case proceeded to trial. The jury found defendant not guilty of attempted aggravated murder but convicted him of first- and second-degree robbery, second-degree assault, unlawful use of a weapon, and identity theft.

Defendant appealed, assigning error to the trial court's denial of his motion to suppress, along with another ruling. Among other things, defendant reiterated his argument that the seizure of the phone affected the subsequent police interview. The state argued that any error was harmless, and, in reply, defendant identified three statements from the interview that he argued were prejudicial and were derivative of the unlawful seizure because they occurred after police told defendant about the call logs that they had found on his phone during the search.

The Court of Appeals affirmed in a split decision. Thompson , 308 Or App at 741, 481 P.3d 921. The majority assumed without deciding that the trial...