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State v. Allen

Court of Appeals of Oregon

October 18, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MARCELLUS RAMON ALLEN, aka Marcellus Allen Allen, Defendant-Appellant.

          Argued and Submitted February 8, 2016

         Multnomah County Circuit Court 120532225; Cheryl A. Albrecht, Judge.

          Bronson D. James argued the cause for appellant. With him on the brief was Bronson James, LLC.

          Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for one count of murder, ORS 163.115. He assigns error to the trial court's denial of his motion to suppress evidence obtained from his cell phone under the authority of a search warrant, arguing that the warrant was invalid under ORS 133.565(2)(c) and Article I, section 9, of the Oregon Constitution. Defendant contends that the search-warrant affdavits failed to establish a factual nexus between defendant's phone and the crimes under investigation, and, therefore, was overbroad in violation of the applicable statutory and constitutional particularity requirements. Defendant also assigns error to the trial court's refusal to give a jury-concurrence instruction on principal or accomplice liability. Held: The trial court erred in denying defendant's motion to suppress because the warrant authorizing the police to search the contents of defendant's cell phone was impermissibly overbroad. The trial court also erred in denying the request for a jury concurrence instruction.

         [288 Or.App. 245 Conviction for murder reversed and remanded; otherwise affirmed.

          ]

          ARMSTRONG, P.J.

         Defendant appeals a judgment of conviction, entered after a combined trial with codefendants Riley and Lomax, for one count of murder, ORS 163.115.[1] See State v. Riley, 288 Or.App. 264, __P.3d__(2017); State v. Lomax, 288 Or.App. 253, __P.3d__(2017). The state's theory at trial was that the killing was gang-related because the victim was selling marijuana at a price "considerably below" that offered by gang-affiliated dealers and the rest of the illegal marijuana market. In support of that theory, the state offered gang-related evidence that had been obtained from defendant's cell phone under the authority of a search warrant. On appeal, defendant challenges the trial court's denial of his motion to suppress that evidence, contending that the search warrant was invalid because it was based on an affidavit that failed to establish a factual nexus between defendant's phone and the crimes under investigation, and because it was too broad to satisfy the particularity requirements of ORS 133.565(2)(c); Article I, section 9, of the Oregon Constitution; and the Fourth Amendment to the United States Constitution. Defendant also assigns error to the trial court's refusal to give a jury concurrence instruction on principal or accomplice liability.

         For the reasons discussed in Lomax, 288 Or.App. at__, also decided this day, we conclude that the trial court erred in denying defendant's request for a jury concurrence instruction. We conclude further that the warrant authorizing the police to search the content of defendant's cell phone was impermissibly overbroad, and thus the trial court erred in denying defendant's motion to suppress. Accordingly, we reverse and remand defendant's conviction for murder.[2]

         The facts, which are undisputed, are taken from the search warrant and from Detective Kammerer's affidavits [288 Or.App. 246] supporting his application for the search warrant.[3] In those affidavits, Kammerer alleged that he had been assigned to investigate a murder committed in Northeast Portland on May 9, 2012. The investigation led police to an apartment, which belonged to Fair and Watson, and where the suspected shooters were believed to be hiding. The police set up a perimeter around the apartment and, after a few hours, Fair and Watson came out and spoke with the police. Fair told Kammerer that she had been in the apartment with Riley when she heard a knock on the door. Fair saw two males she did not recognize. She did not open the door, but Riley said the men were his "homies" and he let them into the apartment; the men were later identified as defendant and Lomax. At one point, defendant and Watson attempted to leave the apartment, but they went back inside the apartment when they were confronted by the police outside it. Fair told Kammerer that defendant and Lomax began to panic, that Lomax turned off the lights, and that defendant began calling people on his cell phone to arrange for a ride.

         After another hour or so, all three codefendants came out of the apartment and were arrested. Upon Fair's and Watson's consent, the police searched the apartment and found three handguns and three cartridges; two of the handguns were loaded, and the bullets found in those guns matched casings and a bullet that had been recovered at the scene of the murder. Police also seized three cell phones from Lomax; Lomax told police that one of the phones was his, and that the other two phones belonged to defendant and Riley.[4] Kammerer averred:

"That I know from my training, education and experience that the internal memory of cellular telephones as well as the cell phone service provider/carrier can contain/ [288 Or.App. 247] maintain/store electronic address books, text messages, photographs, voice mail, email, video and similar items which can contain valuable identifying information including, but not limited to, phone numbers, photographs taken before, during and after a criminal act and text messages containing incriminating statements ...

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