State v. Yaeger

• Decision Date: 26 May 2021
• Docket Number: A164641
• Citation: 311 Or.App. 626,492 P.3d 668
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jeffrey Christian YAEGER, Defendant-Appellant.

311 Or.App. 626

492 P.3d 668

STATE of Oregon, Plaintiff-Respondent,

v.Jeffrey Christian YAEGER, Defendant-Appellant.

A164641

Court of Appeals of Oregon.

Argued and submitted April 22, 2019.

May 26, 2021

Kali Montague, 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.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

ARMSTRONG, P. J.

Defendant was convicted, on a conditional guilty plea, of three counts of second-degree encouraging child sex abuse, ORS 163.686, and two counts of unlawful contact with a child, ORS 163.479. On appeal, she argues that the trial court erred by denying her motion to suppress statements and derivative evidence that she contends were obtained as a result of post-prison supervision officers interrogating her in compelling and custodial circumstances without giving her Miranda warnings, and physical evidence that she contends was obtained by searching her residence and cellphone without her voluntary consent. Defendant also contends that applications for search warrants were based on unlawfully obtained evidence and that evidence discovered as a result of those search warrants should be suppressed. As we explain, some of defendant's arguments are well taken and some are not; the trial court erred in denying the motion to suppress as to some of the evidence. We reverse and remand.

I. BACKGROUND

We review the trial court's denial of a motion to suppress for legal error and are bound by the court's express factual findings if evidence in the record supports them. State v. Taylor , 296 Or. App. 278, 279, 438 P.3d 419 (2019). We state the facts accordingly.

After serving a prison term for second-degree online sexual corruption of a child, ORS 163.432, defendant was released, and the Board of Parole and Post-Prison Supervision (the board) designated her a predatory sex offender. See former ORS 181.585 (2011), renumbered as ORS 181.838 (2013), repealed by Or. Laws 2015, ch. 820, § 36. Her predatory-sex-offender status required public notice, and the notice indicated, among other things, that defendant targets six-year-old to 17-year-old females by posing as a modeling agent and contacting them over the internet. Her sex-offender status made her subject to the crime of unlawful contact with a child, ORS 163.479, if she knowingly contacted a child for the purpose of arousing and satisfying her sexual desires.

The board also imposed post-prison supervision (PPS) conditions. She was prohibited from having access to cellphones, computers, and the internet, and from having contact with children. One condition imposed on defendant was that she "promptly and truthfully answer all reasonable inquiries" by a county community corrections agency. Defendant was subject to "home visits," which meant that defendant had to "[p]ermit the supervising officer to visit the offender or the offender's residence or work site, and to conduct a walk-through" of defendant's residence. Another condition was that defendant "[c]onsent to the search of person, vehicle or premises" if the "supervising officer has reasonable grounds to believe that evidence of a violation will be found." Carpenter, employed by Deschutes County's PPS office, was the officer responsible for supervising defendant.

Another PPS officer, McNaughton, received kites by one of her supervisees, Dunaway. Dunaway's kites reported that defendant had a flip phone and a smartphone that contained pornography and pictures of females appearing to be underage. Dunaway also reported that defendant had been in "contact via phone and text messages with females [she] met" online and that defendant's SD card containing pornography was missing. Dunaway accused defendant of making a "rape kit" and he hoped that the information he was providing to McNaughton would help "get a dangerous predator off the streets." McNaughton passed this information on to Carpenter on July 28.

On July 29, at about 9:15 a.m., Carpenter and McNaughton—wearing "duty gear"—attempted to find defendant at her Tom Tom Motel residence for a "home visit." Carpenter characterized a "home visit" as a visit to a supervisee's home under their supervision conditions, and, if there is reasonable belief that there will be a new crime or a PPS violation, PPS officers have the authority to tell the supervisee that they will be conducting a search. Carpenter's concern, which she believed "was more than likely true," was that "there were victims" because defendant had been convicted before her supervision of sexual offenses concerning minors. Carpenter did not want to rely on hearsay and wanted to give defendant an opportunity to be honest and "tell [Carpenter herself]" about the accusations.

While there, the PPS officers learned that defendant was at the dentist. The officers also learned that a resident of the motel, Mitchell, had found an SD card that contained pornography and pictures of defendant. Mitchell turned the SD card over to a motel worker, Trenholm, who in turn handed the card over to the motel's manager, Steele. The PPS officers were also told that defendant had been seen "hiding things over in the bushes" on the motel grounds, and they searched a "little bit" before deciding that there was too much area to search and that they would go pick up defendant at the dentist.

Carpenter and McNaughton arrived at defendant's dentist's office around 9:45 a.m. and approached defendant as she was walking outside of the dentist's office. The officers told defendant that they would be taking her to the Tom Tom Motel to conduct a home visit. Defendant did not appear to be under the influence of anything, but, before the officers and defendant left, they went into the dentist's office, and Carpenter asked for a letter from the dentist indicating that defendant had clearance to be admitted to jail. While driving to the motel, with defendant sitting in the back of the car, Carpenter asked defendant if she possessed a cellphone. She replied that she did not. Carpenter then told defendant that she should be truthful, and defendant swore that she did not have cellphones because she knew she was not supposed to have them.

Neither Carpenter nor McNaughton Mirandized defendant. It was the policy and practice of the county's probation and post-prison supervision office that supervisees on probation are to be given Miranda warnings when supervising officers are going to make an arrest but, if a supervisee is on post-prison supervision, supervising officers are not required to, and do not, provide Miranda warnings.

When defendant and the PPS officers arrived at the Tom Tom Motel, the officers told defendant that they believed that she had two cellphones, and, after defendant repeatedly denied that she had cellphones, Carpenter "let [defendant] know that [the PPS officers] would be conducting a search" and that "[a]t any time [defendant] was able to tell [the PPS officers] to stop the search."¹

The PPS officers started searching. During the search, the PPS officers found some things: a child-sized homemade swimsuit under defendant's pillow; a black book that included a list of girls’ names, ages (13 to 16 years old), hair color, eye color, weight, breast size, and email addresses; and handwritten stories about sexually abusing children. The officers also found what they believed was a "rape kit": 100 feet of rope and an emergency blanket. They also discovered a charger and receipts for a phone.

Initially, the officers did not find cellphones, and Carpenter told defendant, "Look, I really want you to be honest with me and it is part of your conditions. So be honest with me if you have cell phones." Carpenter told defendant that there was a lot of property to search at the motel and let defendant know that she would call in either the Bend police or the sheriff's office to help with the search, because it "could literally take hours and hours for the two of us to do that." Carpenter let defendant know that she would prefer defendant to be truthful with her. Defendant "knew a search was coming" and that she would be arrested if she refused.

At that point, defendant said, "[Y]es, I, I do have a cell phone." Defendant led the PPS officers out to some ivy bushes on the motel grounds and grabbed a flip phone. Carpenter asked defendant what was on the phone, and defendant replied that there was pornography on the phone of young girls, but "all of age." Defendant gave the PPS officers permission to search the flip phone. The officers discovered a picture of a six-year-old girl used as the phone's wallpaper. They then asked about another phone, a smartphone. Defendant went and retrieved the smartphone out of the ivy bushes. There were numerous pictures on one of the phones that appeared to be of "very young minor females."

The PPS officers did not place defendant under arrest but brought her to the PPS office because they wanted to give defendant an opportunity to elaborate on what the officers had found and the things that defendant had admitted. At the office, Carpenter discussed with defendant the images discovered on the phone and about the names of the females that were written in the black book. Carpenter asked to see the images on the phone, and defendant provided her the passcode. Before looking at the phone, Carpenter asked defendant if they would find any child pornography or any minors, and defendant replied "no" and that all were of age. Carpenter saw child pornography on defendant's phone and asked defendant about it. Carpenter said, after defendant inquired if she could do community service instead of jail time, "[W]e'll talk about your options, but for right now we need to know who have you been...