State v. Yaeger
| Citation | 321 Or.App. 543,517 P.3d 1029 |
| Decision Date | 08 September 2022 |
| Docket Number | A164641 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Jeffrey Christian YAEGER, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the briefs for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
This case is on remand from the Supreme Court for reconsideration in light of the court's recent opinion in State v. DeJong , 368 Or. 640, 497 P.3d 710 (2021). In our first opinion, State v. Yaeger , 311 Or App 626, 651, 492 P.3d 668, adh'd to as modified on recons. , 314 Or App 97, 493 P.3d 579 (2021), vac'd , 369 Or. 338, 504 P.3d 1178 (2022), we agreed with defendant that much of the evidence against her on charges of second-degree encouraging child sex abuse, ORS 163.686, and unlawful contact with a child, ORS 163.479, must be suppressed, because the evidence was obtained from unwarranted searches of defendant's home and while defendant was under non-Mirandized interrogation in compelling circumstances, and that warrants were obtained based on that tainted evidence. We excepted from that conclusion evidence derived from a warranted search of a "secure data" (SD) card from defendant's cell phone. We held that, even excising the unlawfully obtained evidence from the warrant's affidavit, the allegations of the affidavit provided probable cause for a search of the SD card. We reversed and remanded defendant's convictions.
Then, the Supreme Court allowed review pursuant to defendant's petition and vacated our opinion and remanded for reconsideration in light of the court's opinion in State v. DeJong , 368 Or. 640, 497 P.3d 710 (2021). State v. Yaeger , 369 Or. 338, 504 P.3d 1178 (2022). In DeJong , the court highlighted and adhered to its opinion in State v. Johnson , 335 Or. 511, 73 P.3d 282 (2003), in which the court adopted a burden-shifting framework that applies when a defendant challenges the admission of evidence obtained in a warranted search that is preceded by an illegality. Under that framework, because of the warrant's presumptive validity, a defendant has the initial burden to establish a minimal factual nexus between the illegality and the challenged evidence. Id . at 520-21, 73 P.3d 282. If the defendant does so, the burden shifts to the state to establish that the challenged evidence was untainted by the illegality. Id . The court emphasized in DeJong that the defendant's burden to show a minimal factual nexus between the illegality and the challenged evidence is minimal and intended merely to rebut the presumption of regularity attendant to warranted searches.
Id. at 654-55, 497 P.3d 710. The court rejected the state's "but for," analysis, requiring a defendant to show that, "but for the unlawful seizure of the residence the officers would not have obtained the drug evidence." 368 Or. at 651, 497 P.3d 710. The court emphasized in DeJong that Johnson required that the defendant show only that the evidence obtained "is connected to some prior governmental misconduct." Id. (citing Johnson , 335 Or. at 521, 73 P.3d 282 ). The state then must show that the evidence would have been discovered without the prior illegality. Id. The court, in essence, rejected the trial court's and this court's rationale upholding the search in that case based on the warrant being supported by probable cause even without the evidence tainted by the prior illegality. Id. at 646, 497 P.3d 710. The court held that, "When a defendant seeks to suppress evidence discovered in a legally authorized search on the basis of a prior illegality, the focus of the inquiry is not on the legality of the act providing authority to search, it is on the effect that the prior illegality may have had on the authorized search." Id . at 654, 497 P.3d 710.
In light of DeJong , we reanalyze the trial court's ruling denying defendant's motion to suppress evidence from the SD card. For context, we summarize briefly the underlying facts that bear on that issue, drawn primarily from our original opinion. Defendant appealed convictions, 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, contending that the trial court erred by denying her motion to suppress statements obtained through an interrogation in violation of Miranda , and physical evidence that defendant contended was obtained by searching her residence and cell phones without her voluntary consent. Defendant also contended that the warranted discovery of her cell phones was a product of her unlawfully obtained statements. At the time, defendant had been released to post-prison supervision (PPS) on a conviction of second-degree online sexual corruption of a child, ORS 163.432, and the Board of Parole and Post-Prison Supervision had designated her a predatory sex offender.
Defendant's release was subject to certain conditions, including that she could not have a cell phone.
Yaeger , 311 Or App at 628. Carpenter, defendant's PPS officer, learned from McNaughton, another PPS officer, that one of McNaughton's supervisees, Dunaway, had reported that defendant had cell phones on which she kept pornography that appeared to be of underaged females. Dunaway had also reported to McNaughton that defendant had an SD card containing pornography and had lost the card.
On July 29, Carpenter and McNaughton together went to defendant's motel residence to conduct a "home visit." The PPS officers learned that defendant was at the dentist. They also learned from a motel employee that a resident of the motel had found an SD card that contained pornography and pictures of defendant. The motel resident had turned the card over to a motel employee, who turned the SD card over to Steele, the motel manager. Id .
The PPS officers then went to defendant's dentist's office, where they met defendant on her way out. They escorted defendant back to the motel. In defendant's apartment, defendant admitted that she had cell phones, and she led the PPS officers to the place where she had hidden them. The PPS officers searched the cell phones with defendant's permission and found pornographic images of underaged females. The PPS officers then brought defendant to the PPS office, where they questioned her further. Defendant stated that she had lost the SD card to one of her phones. The PPS officers asked where the SD card had been lost and its description. Id. Later that day, Steele brought the SD card that had been found at the motel to Carpenter, who provided it to Officer Murphy, a detective with the Bend Police Department.
Defendant was ultimately arrested. About three weeks after defendant's arrest, Murphy questioned her in the jail, and provided Miranda warnings before doing so. Murphy showed defendant the SD card that Carpenter had given him and asked if it was hers. Defendant said that she was not sure if it was her SD card but that it resembled her own. Id. at 632, 492 P.3d 668. She did not consent to a search of the SD card.
On August 31, Murphy applied for a warrant to search the SD card as well as the personal papers and notebooks that had been discovered in defendant's motel room on July 29. In his affidavit for the search warrant application, Murphy recited much of what had occurred on July 29, as told to him by Carpenter. The search warrant application was granted. Murphy thereafter analyzed the SD card, in which he found "images and videos of suspected child porn" and "images [of] young girls of various ages, from prepubescent to teenagers." Murphy subsequently requested, obtained, and executed three additional warrants.
In her motion to suppress, defendant challenged the admissibility of her statements and challenged the search warrants as well as the search of her room, her cell phones, and the SD card. Id . at 634-65, 492 P.3d 668. The trial court denied defendant's motion, and, on a conditional guilty plea, defendant was convicted 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.
As noted, in our original opinion, we agreed with defendant that statements she made to PPS officers on July 29, 2015, while she was in compelling circumstances during a non-Mirandized interrogation, were obtained in violation of Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. We further agreed with defendant that evidence obtained through an unwarranted search of her hotel room and through execution of a subsequent warrant for the search of her cell phones and the papers found in her hotel room, based on the August 31 affidavit should be suppressed as tainted by the unlawfully obtained evidence. We thus agreed with defendant that most of the evidence obtained before and through the execution of three of four search warrants should be suppressed.
We agreed with the trial court, however, that the warranted search of the SD card from one of defendant's cell phones was valid. We cited our statement in State v. Gardner , 263 Or App 309, 313, 327 P.3d 1169, rev. den. , 356 Or. 400, 339 P.3d 440 (2014), that, "when an application includes constitutionally tainted information, the proper remedy is for the reviewing court to excise all the tainted information from the application and determine whether the remaining information in the affidavit is sufficient to establish probable cause."
Yaeger , 311 Or App at 648, 492 P.3d 668. We described the extensive facts recited in the August 31, 2015, affidavit that were not connected to the unlawfully obtained evidence and...
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