543
Submitted on remand from the Oregon Supreme Court April 21, reversed and
remanded September 8, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEFFREY CHRISTIAN YAEGER,
Defendant-Appellant.
Deschutes County Circuit Court
16CR17252; A164641
517 P3d 1029
On remand from the Supreme Court for reconsideration in light of State
v. DeJong, 368 Or 640,
497 P3d 710 (2021), the Court of Appeals reconsidered,
under the analysis required by DeJong, whether evidence obtained in a warranted search of a “secure data” (SD) card belonging to defendant should have
been suppressed because of an underlying illegality that preceded the issuance
of the warrant. Held: The court held that defendant had established the minimal
required nexus between the underlying illegality and the warrant to search the
SD card, but that there was legally sufficient evidence from which the trial court
could find that, even in the absence of the underlying illegality, the state would
have sought and obtained a warrant to search the SD card and discovered the
challenged evidence. The court determined, therefore, as required by DeJong,
that on remand the trial court would have an opportunity to make findings
addressing whether the state would have sought and obtained the warrant to
search the SD card in the absence of the underlying illegality.
Reversed and remanded.
On remand from the Oregon Supreme Court, State v.
Yaeger, 369 Or 338,
504 P3d 1178 (2022).
A. Michael Adler, Judge.
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.
TOOKEY, P. J.
Reversed and remanded.
544 State v. Yaeger
TOOKEY, P. J.
This case is on remand from the Oregon Supreme
Court for reconsideration in light of the court’s recent opinion in State v. DeJong, 368 Or 640,
497 P3d 710 (2021). In
our first opinion, State v. Yaeger,
311 Or App 626, 651,
492
P3d 668, adh’d to as modified on recons,
314 Or App 97,
493
P3d 579 (2021), vac’d,
369 Or 338,
504 P3d 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 P3d 710 (2021). State
v. Yaeger,
369 Or 338,
504 P3d 1178 (2022). In DeJong, the
court highlighted and adhered to its opinion in State v.
Johnson,
335 Or 511,
73 P3d 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. 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
Cite as
321 Or App 543 (2022) 545
654-55. 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. 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 at
335 Or
at 521). 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. 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.
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
546 State v. Yaeger
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. 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
Cite as 321 Or App 543 (2022) 547
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. 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 P3d 1169, rev den,
356 Or 400
(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.”
548 State v. Yaeger
Yaeger,
311 Or App at 648. We described the extensive facts
recited in the August 31, 2015, affidavit that were not connected to the unlawfully obtained evidence and concluded
that, independent of and after excising unlawful allegations
from the affidavit, the affidavit provided probable cause for
the search of the SD card.
Id. at 650. The search of the SD
card, we held, was valid, and the trial court therefore did
not err in denying defendant’s motion to suppress evidence
derived from it.
In DeJong, the Supreme Court implicitly overruled
our analysis in Gardner. See DeJong, 368 Or at 656 n 10
(stating that the trial court had not determined whether,
“despite the ultimate validity of the warrant, the state
would have inevitably discovered the challenged evidence
absent the unlawful seizure of defendant’s residence”). That
is, it appears that when a defendant has met the burden to
show the minimal required nexus between the unlawfully
obtained evidence and the warrant, DeJong,
368 Or at 650,
in remedying the effects on a warrant based on unlawfully
obtained evidence, it is not sufficient for the state merely to
show that the warrant application was sufficient without the
tainted evidence. The state must show that the challenged
evidence would have been discovered during the warranted
search even without the prior illegality.
Id. at 656 (the issue
is “whether the challenged evidence would have been discovered during the warranted search” in the absence of the
illegal conduct).
The court further explained in DeJong that, in the
face of an illegality preceding the issuance of a warrant,
“the proper resolution of this case depends on whether there
is sufficient evidence from which the trial court, as a reasonable factfinder, could have found that” the challenged
evidence would have been discovered despite the illegality.
Id. at 656-57. Thus, the trial court, in the first instance,
must determine whether the challenged evidence would
have been discovered in the absence of the illegality.
Id.
Here, the state concedes that defendant has met
her initial burden to show a factual nexus between the
challenged evidence and the illegality, and we agree. The
August 31 search warrant affidavit recounted information
Cite as 321 Or App 543 (2022) 549
that was unlawfully obtained on July 29. Thus, it is the
state’s burden to prove that the evidence obtained during
the warranted search of the SD card was untainted by the
prior unlawful conduct, an issue that the trial court did not
address because it had concluded that there had been no
unlawful conduct. The question properly before us on appeal
is whether there is sufficient evidence from which the trial
court could have found that, in the absence of the unlawful conduct, the challenged evidence on the SD card would
nonetheless have been discovered. DeJong,
368 Or at 655.
If the evidence is sufficient, we must remand the case to
the trial court for it to engage in fact finding on that issue.
Id. at 657 (“If there is legally sufficient evidence in the record
to support such a finding, the proper disposition would be to
remand to the trial court to engage in the necessary fact
finding in the first instance.”).
We conclude that there is legally sufficient evidence from which the trial court could find that, even in
the absence of the illegal conduct, the evidence from the SD
card would have been lawfully discovered through “inevitable discovery,” which “permits the prosecution to purge
the taint of illegally obtained evidence by proving … that
such evidence inevitably would have been discovered, absent
the illegality, by proper and predictable police investigatory
procedures.” Id.,368 Or at 656 (internal quotation marks
omitted). In considering that question, “[O]ur task is to
determine whether the state raised sufficient evidence from
which the trial court could, together with nonspeculative
derivative inferences, find the predicate facts necessary to
support the state’s inevitable-discovery argument.” State v.
Hensley,
281 Or App 523, 535-36,
383 P3d 333 (2016) (internal quotation marks omitted).
Here, at the time of the August 31 affidavit, and as
alleged in it, the state had lawfully obtained the SD card
from a third party. The SD card had been found by a third
party on the grounds of the motel where defendant lived.
The state had information from the third party that the card
contained pornography and an image of defendant and that
defendant had lost an SD card. The state was aware that
defendant was prohibited by PPS conditions from possessing an SD card, accessing the internet, or viewing sexually
550 State v. Yaeger
stimulating materials. The state was aware that defendant
had been classified as a “predatory sex offender,” had a sexual interest in young girls, and was prohibited from viewing pornography. The state was aware that defendant had
previously hidden a cell phone containing child pornography on the motel grounds in an effort to avoid detection by
PPS officers. The affidavit’s affiant, Murphy, stated that he
knew, based on his training and experience, that “predatory sex offenders often collect, trade, and view child and
adult pornography,” that cell phones and “Secure Data (SD)
cards within cell phones” can store photos. The record leads
us to conclude that there is legally sufficient evidence from
which the trial court could find that, even in the absence of
the prior illegalities, the state, through proper and predictable police investigatory procedures, would have sought and
obtained a warrant to search the SD card and discovered
the challenged evidence. On remand, the trial court will
have an opportunity to make findings addressing that issue.
Reversed and remanded.
