State v. Turay

313 Or.App. 45

493 P.3d 1058

STATE of Oregon, Plaintiff-Respondent,

v.Ahmed Gbanabom TURAY, Jr., Defendant-Appellant.

A166973

Court of Appeals of Oregon.

Argued and submitted August 16, 2019.

July 8, 2021

Eric Johansen, 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 Shorr, Judge, and James, Judge.

JAMES, J.

Defendant appeals a judgment of conviction on one count of compelling prostitution, ORS 167.017, raising three assignments of error. In his first assignment, he argues that the trial court abused its discretion in denying his request for new court-appointed counsel; we reject that argument without discussion. In another assignment, he asserts that the court committed structural error by instructing the jury that it could return a nonunanimous verdict; but, in light of the fact that the verdict was unanimous, any instructional error in that regard was harmless. State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020) (holding that nonunanimous jury instruction was not a structural error); State v. Ciraulo , 367 Or. 350, 354, 478 P.3d 502 (2020), cert. den. , ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 2519399 (June 21, 2021) (holding that an erroneous nonunanimous jury instruction was "harmless beyond a reasonable doubt" when the verdict was unanimous).

Defendant's remaining assignment of error, and the focus of our analysis in this opinion, concerns the trial court's denial of defendant's motion to suppress evidence discovered during a search of his cell phone. Defendant argues that the warrant to search the phone was not supported by probable cause and, even if supported by probable cause, lacked the particularity required under Article I, section 9, of the Oregon Constitution.

For the reasons explained below, we conclude that the warrant to search the phone was supported by probable cause but that many of the search commands in the warrant failed to satisfy the particularity requirement under Article I, section 9. Accordingly, the final portion of our opinion focuses on what has, thus far, been little discussed in our ever-evolving case law pertaining to digital warrants: What should a court do when it concludes that some, but not all, of a digital data warrant is insufficiently particular? As we explain, in such situations the court must hold a hearing wherein the state, as the party with the burden, must establish that the evidence sought to be utilized was discovered through a search or forensic analysis responsive to the surviving, constitutionally particular, portion of the warrant, and not derived from the unconstitutional portion of the warrant. In this case, because we cannot tell, on this record, whether the evidence at issue was discovered as a result of the lawful search commands or based on the overbroad or nonspecific commands, we vacate and remand for the trial court to conduct such a hearing and to resolve that question.

I. BACKGROUND

Beaverton Police Detective Opitz was investigating prostitution-related activity and found advertisements on backpage.com offering J for sex individually or as a part of a group of women, which included Gregg, someone police knew from an earlier prostitution sting. In September 2017, Opitz arranged a date with J, who was 17 years old, over text message. Opitz watched defendant drive up in a silver Mercedes and drop off J at the arranged time near the arranged location.

After defendant drove away, Opitz had a conversation with J in which she first claimed to have been dropped off by Uber but later admitted that defendant had dropped her off; J had two cell phones and a box of condoms with her. Opitz told officers to stop defendant's car and to arrest him, which they did. A search of defendant's car yielded some cell phones, a pack of condoms, and an EconoLodge motel room key.

Opitz subsequently prepared a 21-page affidavit in support of a warrant to search the contents of the seized phones, including defendant's cell phone. The beginning of the warrant application set forth Opitz's training and experience, including his experience with investigations related to sex-trafficking and exploitation of children. Among other things, the affidavit stated:

"I know that the internet contains many websites that are used to aid and assist in the advertising of prostitution. Some of the websites used are www.backpage.com, www.eroticmugshots.com, and www.cityvibe.com. I know that minors (subjects under the age of 18) will post or be posted on these websites using photos that are not actually them.

"I also know it is common for those involved in internet based sex trafficking to exclusively utilize cellular telephones to run the prostitution enterprise. An internet capable mobile device is used to take the pictures of the victims, connect to the desired website, generate the advertisement, upload the images, and enter payment information. I know, as a certified cell phone examiner and from discussions with other computer forensics examiners, each of these activities can be detectable through a forensic examination of the device."

Opitz's affidavit further stated that, based on his experience as a sex trafficking investigator, he knew it "to be common for someone involved in commercial sexual exploitation to maintain virtual constant contact with the victim" such that, "[w]hen not physically together, the cellular phone becomes the primary method of communication between ‘pimp’ and victim," which "serves to both maintain a level of control over the victim, while also serving the practical purpose of directing the girl in the prostitution business," including being able to "tell the girl when to post ads, when and where to be for a ‘date,’ and how much to charge." The affidavit then described, in a general way, the kinds of information that can be discovered by a forensic search of a cell phone.

The next sections of the affidavit concerned Opitz's investigation, the arrests of defendant and Gregg, and an interview conducted with J once she was transported to the Beaverton Police Department. Among other averments, Opitz stated that he received information in August 2017 that defendant and Gregg were trafficking J for sex, and that he learned from police reports that J had recently been residing with defendant and Gregg in Vancouver, Washington. He stated that he was able to locate a number of prostitution-related postings on backpage.com for both Gregg and J, that he knew that backpage.com is used by prostitution providers, traffickers, and customers, and that he found postings for the Portland and Vancouver areas associated with Gregg dating back to June 15, 2017, and postings incorporating J as part of a "2 for 1" deal with Gregg beginning on July 1, 2017. Opitz also described postings under a different phone number, beginning August 29, 2017, advertising J alone and as part of dates with one or two other women; one of the postings included a photo of J, Gregg, and another female posing in underwear "in front of what appears to be a silver colored Mercedes Benz with no front license plate."

According to the affidavit, J told Opitz that she and defendant were "boyfriend/girlfriend," that defendant knew that she was 17, and that J had engaged in prostitution during the time that she, Gregg, and defendant had resided together. She told Opitz that she used "the Pinger app to text/communicate with johns," which was how she had communicated with Opitz. J also admitted to Opitz that she posted ads on backpage.com but did not pay for the ads, and that Gregg had taught her what to put in the ads, told her what to say to customers and how to act with them, and that Gregg had been the one who introduced her to defendant. She also told Opitz that defendant had rented a motel room at an EconoLodge, and that J had at least one prostitution date there, on September 3, 2017.

After the recitation of facts related to the investigation, the affidavit set forth Opitz's conclusion that he had probable cause to believe that defendant had committed the crimes of prostitution, promoting prostitution, and compelling prostitution in Washington County, Oregon, and probable cause to believe that evidence of those crimes would be found on, among other items, defendant's cell phone. Opitz identified nine categories of evidence to be "searched, seized, and analyzed":

"(1) Any and all communications (voice, email, text, or otherwise) between [J, Gregg, and/or defendant].

"(2) Evidence related to the relationship between [J, Gregg, and/or defendant].

"(3) Evidence regarding any communications (voice, email, text, or otherwise) involving prostitution related activities.

"(4) Any photos of [J, defendant, or Gregg] that show an association with prostitution including any profiting from prostitution.

"(5) Images, videos and/or data which depict [J or Gregg] in sexually explicit positions or conduct that relate to internet postings or advertisements.

"(6) Any evidence related to use of internet sites associated with prostitution, including backpage.com for a period of time 06/15/2017 to 09/06/2017.

"(7) Any evidence related to the use of Uber or other ride-sharing or taxicab companies.

"(8) Any evidence regarding the locations, including geolocation information, of the phones for a period of time from 06/15/2017 to 09/06/2017.

"(9) Any other evidence related to the crimes of Prostitution ( ORS 167.007 ), Promoting Prostitution ( ORS 167.012 ) and/or Compelling Prostitution ( ORS 167.017 )."

A magistrate issued a warrant authorizing the search of defendant's phone that included all nine of those search commands. Police executed that warrant, and the search of defendant's phone...