Submitted on July 29, 2013.
Lane County Circuit Court 201108543 Valeri L. Love, Judge.
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
Defendant was charged with two counts of unlawful delivery of methamphetamine, ORS 475.890, two counts of unlawful possession of methamphetamine, ORS 475.894, and one count each of unauthorized use of a vehicle, ORS 164.135, and possession of a burglary tool or theft device, ORS 164.235. Before trial, defendant moved to suppress evidence of text messages found on a cell phone that was initially searched without a warrant and later searched again after the police had obtained a warrant. The trial court denied the motion on the ground that defendant did not assert a privacy interest in the phone. During trial, defendant moved for a mistrial after a police officer testified that he had asked defendant his name and defendant had replied that he "didn't want to say anything" to the officer. The court denied that motion as well. Defendant was convicted on all counts. On appeal, he assigns error to the trial court's rulings on the two motions. We agree with defendant that the trial court erred in denying the motion to suppress, but do not agree that it erred in not declaring a mistrial. Accordingly, we reverse the judgment with respect to the two counts of delivery of methamphetamine, remand for a new trial on those counts and for resentencing, and otherwise affirm.
The facts material to this appeal are not in dispute. On March 23, 2011, Eugene police officer Trent Magnuson responded to a report that employees at a motel had discovered two men passed out in a room that was undergoing maintenance and was not available for rent. The motel manager opened the room for Magnuson. Defendant was asleep on the bed, and the other man was asleep on the floor. An LG cell phone was lying on the bed next to defendant. On a table, Magnuson found $785 in cash, a note, and a small leather coin pouch. The note read, "Babe, went on drive to serve some sacks [and] pick up money. Call me. XOXO. *Here is breakfast. *I took a gram out! Gaby." A clear baggie was sticking out of the coin pouch, and Magnuson could see a crystalline substance in it that he believed was methamphetamine.
Magnuson woke defendant up. Defendant said that his girlfriend, Gibson, had arranged for them to stay in the motel room, though he did not know the details of the arrangement. Defendant told Magnuson that the money on the table and the cell phone belonged to him, but he denied that the coin pouch was his. Magnuson opened the coin pouch and found 11 small baggies. Eight of the baggies were unused, two had methamphetamine residue in them, and one contained what later tests showed to be nearly two grams of methamphetamine, which Magnuson considered to be "a little bit more" than a typical "user amount."
Another officer conducted a records check on defendant and his companion and learned that both had outstanding arrest warrants. Both men were arrested. Further searching revealed a syringe, a methamphetamine pipe, and a plastic tube used for snorting the drug. The officers seized the items that they had found, including the cell phone. Defendant was evidently released at some point thereafter.
A few days after defendant's arrest, a forensic examiner, Steven Williams, examined the cell phone and found over 150 saved text messages. Williams evidently believed that a search warrant authorized the examination of the cell phone, but, in fact, no warrant had been issued. In a report documenting what he found, Williams quoted two of the saved text messages, which appeared to pertain to the sale of drugs and stolen property. Williams's report was not acted on at that time.
A few weeks later, on April 25, 2011, Eugene police officer Kyle Keyser saw Gibson's car parked at a motel. Another warrant for defendant's arrest was outstanding at that time, and Keyser knew that defendant was associated with that car, so he stopped and watched the area. A few minutes later, defendant and Gibson came out of one of the motel rooms and walked away. Keyser and several backup officers followed on foot, trying to catch up to them. Keyser called out to defendant and asked him to stop. Defendant looked back several times but initially kept walking. After Keyser ordered him to stop a few more times, defendant complied. Keyser handcuffed him and took him into custody based on the arrest warrant. At some point, Keyser asked defendant what his name was, and defendant replied that he "didn't want to say anything to [him]."
After arresting defendant, Keyser searched his pockets and found a baggie containing a little over two grams of methamphetamine, a methamphetamine pipe, $170 in cash, a set of keys to a car that was later discovered to have been stolen, some tools commonly used to break into cars, and Gibson's Blackberry cell phone. Keyser put defendant in the back of his patrol car and then questioned Gibson. Defendant yelled at Gibson several times to stop talking. When Keyser had finished interviewing Gibson, defendant called her over and told her, "Turn the phone off and get another number.
Turn your phone off and get a new phone. Same number." A later search of Gibson's phone revealed approximately two dozen text messages sent or received between April 7 and April 25, 2011, that pertained to the sale of drugs and several other messages that appeared to relate to stolen property. At least two of the drug-related messages were clearly either to or from Gibson. None of the drug-related messages was expressly to or from defendant, though in one, an incoming message, the sender referred to the recipient as "bro, " perhaps suggesting that it was intended for defendant. The remaining drug-related messages, however, were not specific as to whether they were sent by, or intended for, defendant or Gibson. Defendant had ...