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State v. Dvanhsavath

Court of Appeals of Oregon

July 17, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
SENG DVANHSAVATH, Defendant-Appellant.

          Argued and submitted September 26, 2017

          Lane County Circuit Court 15CR22050 Charles M. Zennaché, Judge.

          Lindsey Burrows argued the cause for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Also on the reply brief was O'Connor Weber LLC.

          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 DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment of conviction for driving while suspended and controlled-substance offenses, assigning error to the trial court's denial of his motion to suppress text messages found on his cell phone after a warranted search. Defendant argues that the warrant did not satisfy the particularity requirement of Article I, section 9, of the Oregon Constitution.

         Held: The trial court erred. The warrant to search defendant's cell phone was insufficiently specific, and therefore insufficiently particular, because the warrant's summary characterization of the information sought-various types of data on the phone "related to controlled substance offenses"-was insufficient to apprise the executing officer of which items were or were not subject to the warrant.

         [298 Or.App. 496] DEHOOG, P. J.

         Defendant appeals a judgment convicting him of possession of methamphetamine, ORS 475.894, delivery of methamphetamine, ORS 475.890, possession of oxycodone, ORS 475.834, delivery of oxycodone, ORS 475.830, and driv-ingwhile suspended, ORS 811.182(3). Defendant assigns error to the denial of his motion to suppress text messages discovered on his cell phone, arguing that the warrant authorizing the search did not satisfy the particularity requirement of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Applying the Supreme Court's recent decision in State v. Mansor, 363 Or. 185, 421 P.3d 323 (2018), we agree with defendant that the warrant was insufficiently particular and therefore invalid. Accordingly, we reverse and remand defendant's controlled-sub stance-related convictions (Counts 2, 3, 4, and 5), and otherwise affirm.[1]

         The relevant facts are those set forth in the search warrant affidavit submitted by Officer Harbert of the Springfield Police Department. Harbert arrested defendant for driving while suspended and unlawful manufacture of marijuana after a traffic stop led to the discovery of evidence of those crimes. During a subsequent search of defendant and the car he had been driving, Harbert discovered methamphetamine, oxycodone, a scale, $700 in cash, packaging materials, and payment records that indicated to Harbert that defendant was engaged in drug dealing. Harbert also seized a cellular smartphone in defendant's possession and sought a warrant to search its contents. Based on Harbert's affidavit, a circuit court judge issued a warrant authorizing a search of defendant's smartphone as follows:

"Information on oath having this day been laid before me and established before me that probable cause exists to believe that evidence of the crimes UNLAWFUL DELIVERY METHAMPHETAMINE, UNLAWFUL POSSESSION OF METHAMPHETAMINE, UNLAWFUL DELIVERY OF OXYCODONE and UNLAWFUL POSSESSION [298 Or.App. 497] OF OXYCODONE is located on [defendant's phone], to wit: all names and telephone numbers that have been recorded on the cell phone to include all outgoing calls, incoming calls, missed calls, phone contact lists and address items; all messages both voice and text, text drafts and emails; all photos, videos; and downloaded items related to controlled substance offenses that may be on the phone."

         (Uppercase in original.) The warrant further authorized the executing officer to designate a qualified technician "to search the above-described cell phone for the above-described evidence."

         The resulting search of defendant's phone disclosed a number of text messages suggestive of drug use and trafficking.[2] Defendant moved to suppress that evidence, arguing that the warrant failed to fulfill the particularity requirement of the Oregon and United States constitutions.[3]The trial court denied the motion and, following a jury trial, entered a judgment of conviction.

         On appeal, defendant assigns error to the denial of his motion to suppress. Defendant contends that the warrant here was insufficiently particular, and therefore wholly invalid, because it failed to specifically identify the object of the warranted search and because the underlying affidavit did not provide probable cause for the full breadth of the search that the warrant authorized. The Supreme Court recently considered both of ...


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