State v. Turay

                                        45

Argued and submitted August 16, 2019; vacated and remanded July 8; petition
             for review allowed December 9, 2021 (

)
                      See later issue Oregon Reports


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                AHMED GBANABOM TURAY, JR.,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      17CR59493; A166973
                                  

    Defendant appeals a judgment of conviction on one count of compelling prostitution. He argues, among other contentions, that the trial court erred in denying his motion to suppress evidence discovered during a search of his cell phone.
According to defendant, the warrant to search the phone was not supported by
probable cause and, even if supported by probable cause, lacked the particularity
required under Article I, section 9, of the Oregon Constitution. Held: The warrant
to search defendant’s phone was supported by probable cause, but many of the
search commands in the warrant failed to satisfy the particularity requirement
under Article I, section 9. In that type of situation, where the warrant for digital
data includes both lawful and unlawful commands, a court must hold a hearing
wherein the state, as the party with the burden, must establish that the evidence
sought to be utilized was discovered through a search or forensic analysis responsive to the surviving, constitutionally particular, portion of the warrant, and not
derived from the unconstitutional portion of the warrant. Because the Court of
Appeals could not tell, on the record before it, whether the evidence at issue was
discovered as a result of the lawful search commands or based on the overbroad
or nonspecific commands, it vacated and remanded for the trial court to conduct
the necessary hearing and to resolve that question.
    Vacated and remanded.



    Oscar Garcia, Judge.
   Eric Johansen, 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.
   Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
46                                       State v. Turay

  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
     JAMES, J.
     Vacated and remanded.
Cite as 

 (2021)                                  47

         JAMES, J.
         Defendant appeals a judgment of conviction on one
count of compelling prostitution, ORS 167.017, raising three
assignments of error. In his first assignment, he argues that
the trial court abused its discretion in denying his request
for new court-appointed counsel; we reject that argument
without discussion. In another assignment, he asserts that
the court committed structural error by instructing the jury
that it could return a nonunanimous verdict; but, in light of
the fact that the verdict was unanimous, any instructional
error in that regard was harmless. State v. Flores Ramos,

, 

 (2020) (holding that nonunanimous jury instruction was not a structural error); State
v. Ciraulo, 

, 

 (2020), cert den,
___ US ___, 

, 

 (2021) (holding that an erroneous nonunanimous jury instruction was
“harmless beyond a reasonable doubt” when the verdict was
unanimous).
         Defendant’s remaining assignment of error, and
the focus of our analysis in this opinion, concerns the trial
court’s denial of defendant’s motion to suppress evidence discovered during a search of his cell phone. Defendant argues
that the warrant to search the phone was not supported by
probable cause and, even if supported by probable cause,
lacked the particularity required under Article I, section 9,
of the Oregon Constitution.
         For the reasons explained below, we conclude that
the warrant to search the phone was supported by probable
cause but that many of the search commands in the warrant failed to satisfy the particularity requirement under
Article I, section 9. Accordingly, the final portion of our opinion focuses on what has, thus far, been little discussed in
our ever-evolving case law pertaining to digital warrants:
What should a court do when it concludes that some, but
not all, of a digital data warrant is insufficiently particular? As we explain, in such situations the court must hold
a hearing wherein the state, as the party with the burden,
must establish that the evidence sought to be utilized was
discovered through a search or forensic analysis responsive
48                                                   State v. Turay

to the surviving, constitutionally particular, portion of the
warrant, and not derived from the unconstitutional portion
of the warrant. In this case, because we cannot tell, on this
record, whether the evidence at issue was discovered as a
result of the lawful search commands or based on the overbroad or nonspecific commands, we vacate and remand for
the trial court to conduct such a hearing and to resolve that
question.
                        I. BACKGROUND
         Beaverton Police Detective Opitz was investigating prostitution-related activity and found advertisements
on backpage.com offering J for sex individually or as a part
of a group of women, which included Gregg, someone police
knew from an earlier prostitution sting. In September 2017,
Opitz arranged a date with J, who was 17 years old, over
text message. Opitz watched defendant drive up in a silver Mercedes and drop off J at the arranged time near the
arranged location.
          After defendant drove away, Opitz had a conversation with J in which she first claimed to have been dropped
off by Uber but later admitted that defendant had dropped
her off; J had two cell phones and a box of condoms with her.
Opitz told officers to stop defendant’s car and to arrest him,
which they did. A search of defendant’s car yielded some cell
phones, a pack of condoms, and an EconoLodge motel room
key.
         Opitz subsequently prepared a 21-page affidavit in
support of a warrant to search the contents of the seized
phones, including defendant’s cell phone. The beginning of
the warrant application set forth Opitz’s training and experience, including his experience with investigations related
to sex-trafficking and exploitation of children. Among other
things, the affidavit stated:
        “I know that the internet contains many websites that
     are used to aid and assist in the advertising of prostitution.
     Some of the websites used are www.backpage.com, www.
     eroticmugshots.com, and www.cityvibe.com. I know that
     minors (subjects under the age of 18) will post or be posted
     on these websites using photos that are not actually them.
Cite as 

 (2021)                                      49

       “I also know it is common for those involved in internet based sex trafficking to exclusively utilize cellular
   telephones to run the prostitution enterprise. An internet
   capable mobile device is used to take the pictures of the
   victims, connect to the desired website, generate the advertisement, upload the images, and enter payment information. I know, as a certified cell phone examiner and from
   discussions with other computer forensics examiners, each
   of these activities can be detectable through a forensic
   examination of the device.”

          Opitz’s affidavit further stated that, based on his
experience as a sex trafficking investigator, he knew it
“to be common for someone involved in commercial sexual
exploitation to maintain virtual constant contact with the
victim” such that, “[w]hen not physically together, the cellular phone becomes the primary method of communication
between ‘pimp’ and victim,” which “serves to both maintain
a level of control over the victim, while also serving the practical purpose of directing the girl in the prostitution business,” including being able to “tell the girl when to post ads,
when and where to be for a ‘date,’ and how much to charge.”
The affidavit then described, in a general way, the kinds of
information that can be discovered by a forensic search of a
cell phone.
         The next sections of the affidavit concerned Opitz’s
investigation, the arrests of defendant and Gregg, and an
interview conducted with J once she was transported to
the Beaverton Police Department. Among other averments,
Opitz stated that he received information in August 2017 that
defendant and Gregg were trafficking J for sex, and that he
learned from police reports that J had recently been residing
with defendant and Gregg in Vancouver, Washington. He
stated that he was able to locate a number of prostitution-related postings on backpage.com for both Gregg and J,
that he knew that backpage.com is used by prostitution providers, traffickers, and customers, and that he found postings
for the Portland and Vancouver areas associated with Gregg
dating back to June 15, 2017, and postings incorporating J
as part of a “2 for 1” deal with Gregg beginning on July 1,
2017. Opitz also described postings under a different phone
number, beginning August 29, 2017, advertising J alone
50                                                State v. Turay

and as part of dates with one or two other women; one
of the postings included a photo of J, Gregg, and another
female posing in underwear “in front of what appears to
be a silver colored Mercedes Benz with no front license
plate.”
        According to the affidavit, J told Opitz that she and
defendant were “boyfriend/girlfriend,” that defendant knew
that she was 17, and that J had engaged in prostitution
during the time that she, Gregg, and defendant had resided
together. She told Opitz that she used “the Pinger app to
text/communicate with johns,” which was how she had communicated with Opitz. J also admitted to Opitz that she
posted ads on backpage.com but did not pay for the ads, and
that Gregg had taught her what to put in the ads, told her
what to say to customers and how to act with them, and that
Gregg had been the one who introduced her to defendant.
She also told Opitz that defendant had rented a motel room
at an EconoLodge, and that J had at least one prostitution
date there, on September 3, 2017.
         After the recitation of facts related to the investigation, the affidavit set forth Opitz’s conclusion that he had
probable cause to believe that defendant had committed the
crimes of prostitution, promoting prostitution, and compelling prostitution in Washington County, Oregon, and probable cause to believe that evidence of those crimes would be
found on, among other items, defendant’s cell phone. Opitz
identified nine categories of evidence to be “searched, seized,
and analyzed”:
        “(1) Any and all communications (voice, email, text, or
     otherwise) between [J, Gregg, and/or defendant].

        “(2) Evidence related to the relationship between [J,
     Gregg, and/or defendant].

        “(3) Evidence regarding any communications (voice,
     email, text, or otherwise) involving prostitution related
     activities.

        “(4) Any photos of [J, defendant, or Gregg] that show
     an association with prostitution including any profiting
     from prostitution.
Cite as 

 (2021)                                      51

       “(5) Images, videos and/or data which depict [J or
   Gregg] in sexually explicit positions or conduct that relate
   to internet postings or advertisements.
      “(6) Any evidence related to use of internet sites associated with prostitution, including backpage.com for a
   period of time 06/15/2017 to 09/06/2017.
      “(7) Any evidence related to the use of Uber or other
   ride-sharing or taxicab companies.
      “(8) Any evidence regarding the locations, including
   geolocation information, of the phones for a period of time
   from 06/15/2017 to 09/06/2017.
      “(9) Any other evidence related to the crimes of
   Prostitution (ORS 167.007), Promoting Prostitution (ORS
   167.012) and/or Compelling Prostitution (ORS 167.017).”
        A magistrate issued a warrant authorizing the
search of defendant’s phone that included all nine of those
search commands. Police executed that warrant, and the
search of defendant’s phone yielded photographs from defendant’s phone (State’s Exhibit 14), text messaging from defendant’s phone to a contact named “baby,” which Opitz determined to be J (State’s Exhibit 19), and text messaging from
defendant’s phone to J (State’s Exhibit 20).
         Defendant moved to suppress “any and all objects,
information, statements, and observations obtained by and
resulting from the search” of defendant’s phone, arguing
that the affidavit in support of the warrant failed to establish probable cause that incriminating evidence would be
found in his cell phone, and, in any event, that the warrant
lacked specificity and was overbroad under Article I, section 9. The parties’ arguments in their briefing and at the
hearing on the suppression motion were framed in light of
our decision in State v. Mansor, 

, 

 (2016) (Mansor I), the controlling authority at the
time, which addressed the particularity requirement in the
case of a search for digital evidence on a computer. The trial
court denied defendant’s motion to suppress, the evidence
from defendant’s phone (State’s Exhibits 14, 19, and 20) was
offered at trial, and defendant was convicted of one count of
compelling prostitution.
52                                                           State v. Turay

                            II. DISCUSSION

         On appeal, defendant argues that the trial court
erred in denying his motion to suppress because Opitz’s
affidavit failed to establish probable cause to believe that
incriminating evidence would be found on defendant’s phone,
and because the issued search warrant lacked particularity
for purposes of Article I, section 9.

A.    Probable Cause

          Initially, defendant argues that Opitz’s affidavit
fails to establish more than a speculative possibility that
evidence would be found on defendant’s phone. See State v.
Cazee, 

, 

 (2021) (explaining that
we review a trial court’s determination of probable cause to
support a search warrant for legal error, evaluating whether
the affidavit alleged sufficient facts to permit a neutral and
detached magistrate to determine that seizable evidence
probably would be found in the place to be searched—
i.e., the cell phone). We reject defendant’s probable cause
argument.

         The probable cause analysis is the same for warrantless searches as it is for those conducted with a warrant. State v. Foster, 

, 

 (2011).
Probable cause exists if the facts on which the officers relied
would “lead a reasonable person to believe that seizable
things will probably be found in the location to be searched.”
State v. Anspach, 

, 

 (1984). That
is, there must exist “a nexus between three things: (1) that
a crime has been, or is currently being, committed, and
that (2) evidence of that crime (3) will be found in the place
to be searched.” State v. Van Osdol, 

,

 (2018); State v. Goennier, 

,

, rev den, 

 (2018) (holding same). To
place that in visual terms—we can conceive of probable
cause as three overlapping Venn diagram circles, shown
below:1

    1
      The diagram is for illustrative purposes only, and the extent of any overlap
will depend on the particular case.
Cite as 

 (2021)                               53




One circle is the specific crime of investigation. There must
be facts that support a specific crime, not just generalized
concerns of criminal activity. The second circle is the location to be searched. And, the third circle is the evidence
of the specific crime of investigation that is expected to be
found in the location searched. Where those three Venn circles overlap is the nexus—the point at which constitutional
probable cause exists. The standard is one of probability, not
certainty. Anspach, 

.
         Applying that here, the affidavit in support of the
warrant was sufficient to establish that J was using a cell
phone to communicate via text message to arrange prostitution dates; that J had been offered as part of duo dates
with Gregg, and engaged in prostitution for defendant while
living with defendant and Gregg; that Gregg had taken
nude photographs of J; that defendant had dropped off J
for the prostitution date arranged by Opitz; that J had two
cell phones in her possession at the time she was dropped
off; and that defendant was in possession of a cell phone in
his car at the time that he dropped off J. The affidavit also
recites Opitz’s training and experience that it is “common
for someone involved in commercial sexual exploitation to
54                                            State v. Turay

maintain virtual constant contact with the victim” such
that “the cellular phone becomes the primary method of
communication between ‘pimp’ and victim” for purposes
of control and practical purposes of directing the business
(including being able to “tell the girl when to post ads, when
and where to be for a ‘date,’ and how much to charge”).
Those recitations, taken together, are sufficient to establish
that it is more likely than not that defendant, Gregg, and J
were using cell phones to conduct and facilitate prostitution
activities, and that evidence, such as text messages (the evidence circle of the Venn diagram), of the crime of promoting
prostitution (the crime of investigation circle of the Venn
diagram) would be found on defendant’s phone (the location
circle of the Venn diagram). Accordingly, the facts set forth
in the affidavit in this case place us at the center of those
overlapping Venn diagrams—the nexus—where constitutional probable cause exists. Goennier, 

.
Thus, defendant’s phone was lawfully seized and subject to
search for evidence of the crimes of prostitution, promoting
prostitution, and compelling prostitution.
B.   Particularity
         The fact that defendant’s phone was lawfully seized
and subject to search does not, by itself, permit the state to
analyze and use all of the information found on the phone.
Under Article I, section 9, a search warrant must “particularly describ[e] the place to be searched, and the person or
thing to be seized.” The warrant must serve to guide the
hand of the executing officer. In the case of warrants for
data, because the typical data storage device will contain
more unresponsive data than responsive data, particular
care in guiding the executing officer’s hand must be given.
We therefore turn to defendant’s assertion that the warrant
lacked particularity, which presents a question of law that
we review for legal error. State v. Paye, 

,

 (2021).
        As noted earlier, the trial court’s ruling in this
case was based on our analysis of particularity in Mansor I.
However, the Supreme Court subsequently issued its decision in State v. Mansor, 

, 

 (2018)
(Mansor II), which affirmed our decision in that case but
Cite as 

 (2021)                                         55

involved an analysis that differed from ours “in some fairly
significant ways.” Paye, 

. In State v. Savath,

, 

, rev den, 

 (2019), we
summarized Mansor II before applying it in the context of
a search of a cell phone. We repeat some of that summary
here:
       “Both the Supreme Court of the United States and the
   Oregon Supreme Court have recognized that, with regard
   to searches for data on cell phones or similar electronic
   devices, the particularity requirement takes on special significance. ‘[U]nlike most other “things” that may be seized
   in a search, a computer or other digital device is a repository with a historically unprecedented capacity to collect
   and store a diverse and vast array of personal information.’
   [Mansor II, 363 Or] at 208 (recognizing that a cell phone
   might be better viewed as a ‘place’ to be searched than a
   ‘thing’ to be examined); see Riley v. California, 

,
   396-97, 

, 

 (2014) (observing
   that ‘a cell phone search would typically expose to the government far more than the most exhaustive search of a
   house’ (emphasis in original)). At the same time, however,
   the application of the particularity requirement to warrants authorizing electronic searches creates challenges
   not usually present with physical searches. ‘[A] category
   of information that is a likely source of evidence … may
   be composed of many types of data and files, and the …
   software’s organization of those data and files may be
   unrelated to the user’s perception of how their data is organized.’ [Mansor II, 

] (rejecting, for that reason,
   requirement of ex ante limitations based on file or data type
   or specific application). Further, there is typically ‘no way
   to know what data a file contains without opening it,’ as
   specific files may be hidden or disguised, either intentionally or inadvertently. 

. Therefore, an electronic
   search ‘likely will need to examine, at least briefly, some
   information or data beyond that identified in the warrant.’
   

. …
      “In light of those considerations, a warrant for an
   electronic search ‘must identify, as specifically as reasonably possible in the circumstances, the information to be
   searched for.’ [Mansor II, 

] (emphasis added).
   As [Mansor II] explains, the essential ‘thing’ about which
   a warrant must be particular is the probative information,
   not types of files or their location within the computer’s
56                                                  State v. Turay

     file-management system: ‘[T]he “what” is a description of
     the information related to the alleged criminal conduct
     which there is probable cause to believe will be found on
     the computer.’ 

 (emphasis in original). To further
     narrow the search and specify the information sought,
     the warrant must include, ‘if relevant and available, the
     time period during which that information was created,
     accessed, or otherwise used.’ 

.”

.
        In Savath, we considered whether the following
search command was sufficiently particular:
         “[Evidence of the crimes of unlawful possession and
     delivery of methamphetamine and oxycodone] located on
     [the 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.”

. We agreed with the defendant that the command said “almost nothing about the information they may
seek—the ‘what’ as to which the warrant must be particular,” and that “the warrant’s summary characterization of
the information sought—‘related to controlled substances
offenses’—was insufficient to apprise the executing officer
of which items were or were not subject to the warrant.”

.
         Relying on the Supreme Court’s decision in
Mansor II, defendant argues that the nine search commands
were insufficiently specific and therefore unlawfully permitted officers to “rummage through the entirety of defendant’s
phone and decide what they believed was relevant,” thereby
making it a general warrant. According to defendant, the
warrant failed to limit the search to relevant dates, even
though the police knew the time period when relevant documents were created or internet sites visited, and it did
not include any time-based description of the information
sought or time period during which such information was
created, accessed, or otherwise used.
Cite as 

 (2021)                                                 57

        The state, for its part, defends only a subset of the
search commands under Mansor II. The state argues:
    “Its command to search communications was limited to
    those between defendant, Gregg, and the victim, or those
    discussing prostitution generally. The same is true for its
    command to search photographs, which was limited to photographs either depicting a connection to prostitution or
    suitable for use in an advertisement for prostitution. And
    although the warrant commanded a search for other data,
    any overbreadth in those commands was severable.”
The state expressly does not concede that the remaining
commands were overbroad, but neither does it develop any
argument as to how they satisfy the particularity requirements described in Mansor II.
         In assessing whether the commands are sufficiently
particular, we consider not only the warrant itself but
Opitz’s affidavit in support of the warrant, which the parties below treated as a package.2 See Mansor II, 

 (holding that the defendant bore the burden of establishing facts pertaining to the challenge to the validity of
the warrant, including controverting the inference that affidavit physically accompanied the warrant and was incorporated). In Mansor II, the warrant authorized police to “seize
and search and forensically examine” certain items listed in
an attachment, including the defendant’s computers. 

. Yet, the only description of any relevant information
that the affiant believed might be found on the computers
was that of internet search history for a particular date. 

         The court viewed “that description of the information to be searched for as a limitation on the search, analysis,
and forensic examination authorized by the warrant.” 

. It concluded:
        “The warrant, read in conjunction with and limited
    by the affidavit, met the particularity requirement of
    Article I, section 9, as we have articulated it above. It sufficiently described the ‘what’ to be searched for and the

    2
      The state relied on the affidavit as part of the warrant, and defendant did
not dispute that the affidavit was attached to the warrant. The warrant itself
includes a notation at the top that reads “IMAGE ATTACHMENT (1750392)
SEARCH WARRANT AFFIDAVIT.”
58                                                            State v. Turay

     relevant time frame: The June 12 internet search history.
     It informed those executing the warrant as to what they
     were to look for with a reasonable degree of certainty. And,
     because that description limited the extent of the search
     that was authorized by the warrant, as we read it, the permitted search was not broader than the supporting affidavit supplied probable cause to justify.”

 (internal citations, alterations, and quotation
marks omitted).
          As we understand Mansor II, when an affidavit is
considered as part of the warrant, the search commands
must be read in conjunction with and limited by the descriptions in the affidavit. A search warrant cannot be broader
than a supporting affidavit supplies probable cause to justify, so the supporting affidavit can operate to inform those
executing a warrant as to what they are authorized to search
for under a specific command—i.e., limit the parameters of
the search command.3 

         Viewing the nine search commands in light of
Opitz’s attached affidavit, we agree with defendant—and
with the state’s partial and implicit acknowledgment—that
many of the commands in the warrant do not comport with
the level of particularity demanded by Article I, section 9, as
articulated in Mansor II.
         The first two search commands—“[a]ny and all
communications (voice, email, text, or otherwise) between
[J, Gregg, and/or defendant]” and “[e]vidence related to the
relationship between [J, Gregg, and/or defendant]”—include
no restrictions on the time or subject matter of the information that is sought. Calling forth the image of the Venn
diagram referenced earlier, one circle concerned the specific
crime of investigation. Here, the search for texts or communications between two people, without time limitation, is
disconnected from the specific crime of investigation, morphing into a search for more generalized nefarious activity.
    3
      Although a warrant cannot be broader than the affidavit, it certainly can,
and often is, narrower. In such instances, where the issuing magistrate sought to
narrow the scope of the search from the affidavit, it is currently an open question
what, if any, effect appending the affidavit to the warrant carries. Because the
parties do not challenge the appending of the affidavit to the warrant in this
case, we leave that issue for another day.
Cite as 

 (2021)                               59

Further, “evidence related to the relationship” is so broad
that nearly anything could be contemplated, thus failing to
articulate the specific evidence to be sought—another circle
in our Venn diagram. For these reasons, they were insufficient to apprise an executing officer of which information was
or was not subject to the warrant. Nothing in the affidavit
would serve to provide reasonable parameters on what type
of information was being sought, so the command amounts
to a general warrant for a search of anything incriminating.
          The seventh command (Uber or ride-sharing) and
ninth command (a catchall for any other evidence related
to prostitution crimes) similarly lack the requisite specificity to allow an executing officer to identify the information
that is sought. Although the affidavit mentions J claiming
to have been dropped off by Uber, that was in the context
of a lie to Opitz about whether defendant had dropped her
off. Neither of those commands supplies dates, subject matter limitations, or other parameters that would provide a
reasonable degree of specificity to an officer executing those
commands, despite the fact that police were investigating
prostitution activity that occurred during discrete periods
of time, at known physical locations (like the EconoLodge
and defendant’s residence), by known persons, J and Gregg.
Nothing in the attached affidavit can be understood to cabin
the commands or identify the information sought with any
reasonable degree of certainty.
         The eighth command—for all geolocation information over a three-month span—likewise lacks specificity,
given the nature of the prostitution activity that was being
investigated, and Opitz’s affidavit does not include descriptions of locations or activities that would limit and provide
any reasonable degree of certainty as to what the eighth
command sought; it amounted to a general hunt through
the phone for its whereabouts for three months, without any
guidance to an executing officer as to what geolocation data
would be evidence of any criminal activity. See State v. Bock,

, 

 (2021) (“Any interpretation of the search command broad enough to permit the
use of any material discovered on the cell phone relevant to
establish the device owner or user’s identity is impermissibly nonspecific. A warrant without clear limitations on the
60                                                  State v. Turay

material subject to search and seizure requires the executing officer to employ discretion in deciding what to search or
seize.” (Emphasis in original.)).
          That leaves the middle four commands:
        “(3) Evidence regarding any communications (voice,
     email, text, or otherwise) involving prostitution related
     activities.
        “(4) Any photos of [J, defendant, or Gregg] that show
     an association with prostitution including any profiting
     from prostitution.
         “(5) Images, videos and/or data which depict [J or
     Gregg] in sexually explicit positions or conduct that relate
     to internet postings or advertisements.
        “(6) Any evidence related to use of internet sites associated with prostitution, including backpage.com for a
     period of time 06/15/2017 to 09/06/2017.”
         We have little trouble concluding that the latter
two of those commands are sufficiently particular to satisfy
Article I, section 9. The fifth command specifically describes
the evidence that is sought by identifying the persons in
the photos, videos, or other data, and the activities that are
depicted: sexually explicit positions or conduct that relate
to internet postings or advertisements. Given that level of
specificity, we agree with the state that the absence of a
temporal limitation was not fatal to the search command.
See Mansor II, 

 (“[A]nalytically, ‘temporal limitations’ are more accurately seen as a way of identifying
with greater specificity the ‘what’ that is being searched for,
rather than as a separate, independently required element,
in meeting the particularity requirement for a computer
search.”).
          The sixth command is likewise sufficiently particular. Although the phrase “related to use of internet sites
associated with prostitution” provides little direction to an
executing officer, the rest of the command identifies a specific site, backpage.com, and Opitz’s affidavit lists two other
sites (www.eroticmugshots.com and www.cityvibe.com).
Given the time limitations in the command (use during the
“period of time 06/15/2017 to 09/06/2017”), as well as the
Cite as 

 (2021)                                          61

specific websites listed in the warrant and affidavit, the
search command is sufficiently specific and not overbroad.
        The third and fourth commands present closer
questions. As for the third command, the phrase “involving prostitution related activities” is open-ended and, in the
abstract, gives little guidance to an officer executing those
commands. On the other hand, in Paye, we recently upheld
a similar command in the context of a warrant to search
a computer for evidence of a defendant’s involvement in
prostitution-related crimes.
         In Paye, the affidavit in support of the warrant
stated that one of the women whose services the defendant promoted had reported that the defendant “ ‘had other
women working for him’ ” and that the woman had “ ‘observed
“listings” on his computer.’ ” 310 Or App at 415. The search
command, in turn, was broadly worded:
          “ ‘Any and all evidence documenting the [crimes of promoting prostitution and compelling prostitution], to include:
      any and all digital images, digital video clips, and or photographs depicting [C], and/or any other as-of-yet unidentified females; Contact information: to include, telephone
      numbers, names, and electronic mail (email) addresses;
      private messages; data storage identifying information;
      SMS/text messages and history; emails[.]’ ”
Id.
         In analyzing the question of particularity, we
explained that “those specifications—which indicate that
the evidence expected to be found on defendant’s computer
consists of images and videos of women he prostituted, contact information for people connected with the crimes, and
communications about the crimes—satisfy the standard set
by Mansor II for describing what evidence reasonably can be
expected to be found on a computer.” Id. We then expressly
rejected the defendant’s argument that the absence of temporal limitations on the search rendered it overbroad:
      “[T]he warrant was supported by probable cause that
      defendant was engaged in an ongoing enterprise promoting
      prostitution, and that evidence of that enterprise would be
      found on his computer. The warrant identified with specificity what the evidence was. There is no indication that
62                                                  State v. Turay

     specific relevant time frames pertaining to that ongoing
     activity were ‘available to the police,’ and, given the ongoing nature of defendant’s prostitution business, such limitations, to the extent relevant, are not highly so. Thus,
     under Mansor II, this is not a situation in which the omission of temporal limitations renders the warrant unconstitutionally overbroad.”

Id. at 416-17.
         In light of Paye, we conclude that the command to
search for evidence “regarding any communications (voice,
email, text, or otherwise) involving prostitution related
activities” was sufficiently particular in the context of the
supporting affidavit and crimes involved. As explained earlier, Opitz’s affidavit gives rise to probable cause to believe
that defendant, J, and Gregg were using cell phones to
communicate about and arrange prostitution dates among
one another and with potential johns, including through
text messages about those dates. Even without specific
date ranges supplied in the command itself, it sufficiently
indicates what—that is, messages and communications
related to prostitution activities—that reasonably would be
expected to be found on defendant’s cell phone beginning
around June 2017 through the fall of 2017; given the ongoing
nature of defendant’s activities, strict time parameters were
not necessarily available to police, even if they knew when
some of the activity took place.
         As was the case in Paye, the affidavit created probable cause to believe that the prostitution crimes were part
of an ongoing business involving defendant and Gregg and
that predated their involvement with J and involved other
unknown women as well. Given the nature of the crimes,
as supported by probable cause in the attached affidavit,
the command identified the information to be searched for
as specifically as reasonably possible in the circumstances.
See Paye, 

 (explaining that the “omission
of such limits is not, ultimately, problematic if such limitations are not ‘relevant and available to the police,’ and if the
warrant otherwise adequately identifies with specificity the
evidence expected to be found based on the probable cause
determination”).
Cite as 

 (2021)                               63

          We reach a different conclusion, however, with
regard to the fourth command, which authorizes a search
for “[a]ny photos of [J, defendant, or Gregg] that show an
association with prostitution including any profiting from
prostitution.” The command identifies specific persons in
the photos, but it uses the vague phrase “association with
prostitution including any profiting from prostitution.” That
phrase provides little, if any, guidance as to what reasonably
could be expected to be found on the phone. And, unlike the
third search command, the fourth cannot be saved by the
broader context of the supporting affidavit. To the extent
photos are mentioned in the affidavit, they are photos that
are sexually suggestive or part of advertisements—the subject of a separate search command (the fifth command). An
officer executing the fourth search command would not have
any clear limitations on the material subject to search and
seizure, amounting to the type of rummaging that violates
Article I, section 9.
         In sum, we conclude that only the third, fifth, and
sixth of the nine search commands were valid. The remainder lacked the particularity required by Article I, section 9.
C. Severability Issues
         The remaining question is what to do about the
fact that some search commands were valid but others were
not. Ordinarily, “[i]f a portion of a search warrant fails to
describe the items sought with sufficient particularity, that
portion may be excised and the balance of the warrant
upheld.” State v. Vermaas, 

, 

(1992), rev den, 

 (1993) (citing State v. Sagner, 

, 

 (1973) (adopting the court’s
severance reasoning in Aday v. Superior Court of Alameda
Cty., 55 Cal 2d 789, 797, 

 (1961))). See also
State v. Burnham, 

, 

 (2018)
(“[T]he trial court only erred insofar as it did not suppress
evidence seized under the overbroad portion of the warrant,
and it did not err by admitting evidence covered by the valid
portions of the warrant.”).
        The exception to that rule is where the warrant is
essentially general but meets the particularity requirement
64                                              State v. Turay

“as to minor items.” Sagner, 

 (“Both [Aday]
and United States v. Ketterman, 

 (DC App 1971),
caution that invalid portions of a warrant will not be considered severable in all circumstances. If a warrant is essentially general, but meets the requirement of particularity as
to minor items, ‘[s]uch an abuse of the warrant procedure, of
course, could not be tolerated.’ ”); Aday, 55 Cal 2d at 797, 

 (“We recognize the danger that warrants might be
obtained which are essentially general in character but as
to minor items meet the requirement of particularity, and
that wholesale seizures might be made under them, in the
expectation that the seizure would in any event be upheld
as to the property specified. Such an abuse of the warrant
procedure, of course, could not be tolerated.”). Accord Wayne
R. LaFave, 2 Search and Seizure: A Treatise on the Fourth
Amendment § 4.6(f) (6th ed Sept 2020 Update) (addressing
partial invalidity and explaining that, “At least when there
is no problem of pretext and the valid portions of the warrant
are not an ‘insignificant or tangential part of the warrant,’
no problem is presented in cases like Aday, where the items
seized are those for which probable cause existed and which
were particularly described.” (Footnotes omitted.)). This is
not a case in which the invalid commands could be said to
be an insignificant or tangential part of a general warrant.
          Here, as the preceding analysis suggests, the invalid
commands can be assessed independently and can be severed from the valid portions. The difficulty is the next step:
determining what evidence was the product of one of the
invalid, rather than valid, search commands. As noted earlier, the state discovered and offered at trial text messages
and photos (which included backpage.com screenshots) that
had been discovered on defendant’s phone. However, the
suppression record before us does not include evidence about
how the search of the phone was conducted; that is, we cannot tell what search command was being executed when the
text messages and photos were discovered.
        In this case, the state argues that we can nevertheless affirm by simply working backward from the evidence that was discovered, tracing it to a lawful command.
In other words, the state’s view is that we look to whether
the evidence that is subject to the suppression motion is
Cite as 

 (2021)                                65

the kind that police would be expected to discover from one
of the lawful commands, regardless of how the electronic
search was actually conducted.
         We disagree with that approach. The question before
us under Article I, section 9, is not whether the state could
have searched and seized evidence under a valid warrant;
the question is whether it did. The answer to that question
depends not on how a forensic search of the phone might
have been conducted; rather, it depends on how the search
was actually conducted. As the court explained in Mansor II,
“when the state conducts a reasonably targeted search of
a person’s computer for information pursuant to a warrant
that properly identifies the information being sought, the
state has not unreasonably invaded the person’s privacy
interest, and the state may use the information identified in
the warrant in a prosecution or any other lawful manner.”

. But, “when the state looks for other information or uncovers information that was not authorized by the
warrant, Article I, section 9, prohibits the state from using
that information at trial, unless it comes within an exception to the warrant requirement.” 

         In Bock, we recently rejected the idea that the
“plain view” doctrine plays any role in the context of an electronic search. That is, we rejected the state’s argument that
it could use evidence discovered outside the scope of a lawful search command so long as it was not “far beyond” the
scope of the warrant. 310 Or App at 340. Consequently, any
evidence that is not discovered pursuant to a lawful search
command must be suppressed; otherwise, we would “sanction the sort of general warrant that the plain view doctrine
was never meant to authorize.” Id.
         This case ultimately presents the same problem
that we encountered in State v. Frischman, 

, 

, rev den, 

 (2019), and
it requires the same disposition. In Frischman, we agreed
with the state that the invalid portions of the warrant could
be excised, allowing for admission of the evidence obtained
pursuant to the valid portions. But the parties did not
“appear to have developed the facts as to what evidence, in
particular, was seized as a result of the invalid portion of
66                                               State v. Turay

the warrant or to have understood fully the need for that
factual development following the determination that the
warrant was partly good and partly bad.” 

. And,
at oral argument, the parties “presented competing views of
whether the seizure of certain items authorized by valid portions of the warrant may, nonetheless, have been tainted as
a result of the officers’ execution of the invalid portion of the
warrant.” 

. In that circumstance, we concluded
that “a remand is required so that the trial court can determine what evidence is admissible pursuant to the valid portions of the warrant and what evidence must be suppressed
because it was obtained based on the invalid portion of the
warrant,” and we left it to the trial court to determine in the
first instance whether the officers’ execution of the invalid
portion of the warrant tainted the execution of the valid portion. 

          Here, as in Frischman, the record created below
is insufficient for us to sort out what parts of the evidence
admitted at trial (State’s Exhibits 14, 19, and 20) was discovered while police were executing one of the lawful search
commands as opposed to one of the invalid commands. We
therefore must remand for development of a record as to how
the forensic search of the phone was conducted.
          In remanding this case, we observe that an adequate record may likely require testimony from the officers or forensic technicians who conducted the search; an
explanation of the steps that were undertaken while executing the warrant; and, importantly, evidence of what
search commands were being carried out at each step of the
search of the phone, and what those commands generated.
As the Supreme Court noted in Mansor II, “although a computer search may need to be broad, it must be reasonably
executed.” 

 n 15 (citing Or Const, Art I, § 9).
On remand, the parties can further address the manner in
which this warrant was executed and trace the discovery of
the evidence that is the subject of defendant’s motion to suppress; and, depending on whether all or part of the evidence
at issue was lawfully discovered, the trial court can determine, in the first instance, whether a new trial is necessary.
          Vacated and remanded.