State v. Breedwell

                                      172

Argued and submitted April 16, 2021, affirmed December 14, 2022, petition for
                 review denied May 18, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     EDDIE BREEDWELL,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR33103; A170050
                                  

     Defendant appeals from a judgment of conviction, assigning error to the trial
court’s denial of his motion to suppress evidence discovered in his apartment
during a warranted search. The warrant specified the address of defendant’s
apartment building but not his name or apartment number, and, although a supporting affidavit that accompanied the warrant at the search did include that
information, it was not physically attached to the warrant or incorporated into
the warrant by express reference. Defendant challenges the warrant as insufficiently particular under Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution. Held: For a defendant
to establish that an affidavit cannot be considered in construing the warrant it
supports, the defendant must show that, under the totality of the circumstances,
there was not a sufficient connection between the warrant and the affidavit for
the executing officers to have reasonably believed that the warrant and affidavit
were functionally one document, such that it was not appropriate for the officers
to rely on the contents of the affidavit in limiting their search. Applying that
standard to the facts, the Court of Appeals concluded that defendant did not meet
his burden to establish that the affidavit lacked the requisite connection to the
warrant. Considering the supporting affidavit as part of the search warrant, the
court concluded that the warrant met the particularity requirement of Article I,
section 9. Turning to defendant’s arguments under the Fourth Amendment, the
court concluded that, although the warrant was facially invalid under Fourth
Amendment law, the good faith exception to the federal exclusionary rule applied.
Thus, the trial court did not err in denying defendant’s suppression motion.
    Affirmed.



    Eric J. Bergstrom, Judge.
   Zachard Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
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Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  SHORR, J.
  Affirmed.
  Powers, J., concurring.
174                                       State v. Breedwell

        SHORR, J.
        Defendant appeals from a judgment of conviction,
assigning error to the trial court’s denial of his motion to
suppress evidence discovered in his apartment during a
warranted search. The warrant specified the address of
defendant’s apartment building but not his name or apartment number. And, although a supporting affidavit that
accompanied the warrant at the search did include that
information, it was not physically attached to the warrant
or incorporated into the warrant by express reference.
Defendant challenged the warrant as insufficiently particular under Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution.
The trial court denied the motion, and defendant appeals.
         For the reasons that follow, we agree with the trial
court’s conclusions. Beginning with defendant’s Article I,
section 9, arguments, we conclude first that we may construe the warrant with reference to the supporting affidavit.
Second, considering those documents together, we conclude
that the warrant was sufficiently particular in describing
the place to be searched. Finally, considering defendant’s
arguments under the Fourth Amendment, although the
warrant failed to incorporate the affidavit and was overbroad, the good faith exception to the exclusionary rule
applies. We therefore conclude that the trial court did not
err and affirm.
                           FACTS
         In reviewing the trial court’s denial of defendant’s
motion to suppress, we are bound by the court’s findings of
historical fact that are supported by constitutionally sufficient evidence in the record. State v. Kauppi, 

, 

, rev den, 

 (2016). Here,
the trial court made detailed written factual findings that
were supported by constitutionally sufficient evidence in the
record. Accordingly, we draw our statement of the facts primarily from those findings.
        On a morning in May 2018, Portland Police Officer
Green and three other officers (Jacobson, Martley, and
Honel) went to defendant’s apartment unit in a four-story
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apartment building in downtown Portland to follow up on
an anonymous tip that defendant was accepting stolen property as payment for heroin and methamphetamine. The
tip included pictures, which purportedly showed the stolen
property in defendant’s apartment, as well as descriptions
of that property. Anticipating that he would seek a search
warrant, Green had already drafted sections of a warrant
affidavit detailing the tip and his investigation thus far.
Green also led a “mission plan” meeting with the other officers where he summarized the information in the partial
affidavit and detailed “why we were there in the first place
[and] what items we were looking for.” When the officers
arrived, Green confirmed that defendant’s name appeared
on a registry at the building’s entrance as the resident of
unit 38, the same unit specified in the tip.
          Defendant answered the door and agreed to speak to
officers. Through the cracked-open door, Jacobson could see
inside the apartment and saw what he identified as a small
black scale covered in white residue. Based on his belief that
he possessed probable cause to arrest defendant for possession of methamphetamine, Green arrested defendant.
         Green then left to obtain a warrant to search defendant’s apartment while Jacobson and Martley remained
outside of apartment 38. At the station, Green added a summary of his contact with defendant to his partial affidavit
draft and had both his sergeant and a deputy district attorney review the affidavit and warrant. Green then presented
the affidavit and warrant to a judge at the courthouse. The
judge signed and dated the affidavit, indicating that it had
been subscribed and sworn before the court. Finally, the
judge signed and dated the warrant itself. Altogether, that
process took a couple of hours.
        Although Green’s affidavit in support of the warrant specifically identified the residence to be searched as
333 NW 6th Avenue #38, the signed warrant authorized
“any police officer in the state of Oregon” to search “the
premises of 333 NW 6th Avenue, City of Portland, County
of Multnomah, State of Oregon,” mistakenly omitting defendant’s specific apartment number. The warrant did not
incorporate or otherwise reference the affidavit and did not
176                                                  State v. Breedwell

identify defendant by name. Green testified that the omission was an “oversight,” rather than a measure to secure
authorization to search the entire building, and that he was
“not experienced in warrant writing.”
         After the warrant was signed, Green put both the
warrant and affidavit into a single manila case file folder.
The affidavit was not stapled, paperclipped, or otherwise
physically appended to the warrant, but was side by side
with the warrant in the folder.1 Green returned to the station, where defendant was by then in custody in a holding
cell, and read the contents of the warrant out loud to defendant. Green did not read the affidavit to defendant, however.
         Green then returned to defendant’s apartment with
the case folder to execute the warrant, where he met Jacobson
and Martley, who were still stationed outside apartment 38.
Honel returned to assist with the search, and two additional
officers arrived to help “with cataloging the property on the
property receipts.” Green did not read the warrant or affidavit to the other officers or provide the documents to them
to read. Instead, when officers had questions regarding the
scope of the search, they asked Green, who relied on his own
memory in answering those questions. Green testified that
he did not reference the warrant or affidavit during the execution of the warrant but would have done so if he had “had
any confusion.” Although Green testified that the folder
was with him during the search, he did not clarify whether
the folder was kept in a vehicle or actually brought into the
apartment unit during the search. Regardless, the trial
court found that the affidavit was “available to the officers
during the search.” The officers seized drugs and a number
of items that had previously been reported as stolen. The
officers searched apartment 38 only and did not search any
other apartment unit located at 333 NW 6th Avenue.
         Finally, Green left a copy of the warrant, without
the affidavit, along with the warrant return and property
receipts, on a coffee table inside the apartment. The officers
then left the premises. Green did not learn that the search
    1
      The evidence was not clear as to whether the warrant and affidavit were
the only two documents in the folder, or whether there were other documents
associated with the investigation of defendant in the folder.
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warrant had failed to include defendant’s apartment number until months later, when the prosecutor alerted him to
the issue.
         Defendant was charged with various drug crimes.
Before trial, defendant moved to suppress the evidence
obtained pursuant to the search warrant, challenging the
warrant as insufficiently particular and facially invalid
under Article I, section 9, and the Fourth Amendment,
because the warrant failed to include defendant’s name or
specific apartment number. Citing State v. Mansor, 

, 

 (2018) (Mansor II), defendant further
contended that the court could not consider the affidavit in
evaluating defendant’s warrant challenge under Article I,
section 9, because the affidavit was not incorporated by
reference into the warrant or physically attached to the
warrant. As to the Fourth Amendment, defendant similarly contended that the warrant was facially invalid, that
those defects were not cured by the affidavit, and that the
good faith exception to the exclusionary rule did not apply
because the officers had not relied on the affidavit during
the warrant’s execution.
         The state argued that the warrant was sufficiently
particular under Article I, section 9, for two separate reasons. First, the stated argued that Mansor II supported its
argument that the affidavit cured any defects in the warrant when it accompanied the warrant during execution.2
Second, the state argued that the warrant was sufficiently
particular even standing alone, because the missing apartment number was a “mere clerical error” that was not fatal
because Green was able to resolve the ambiguity by relying on reasonable efforts, including his personal knowledge
of the correct apartment. See Kauppi, 

(“[W]hen an otherwise adequately descriptive warrant contains a clerical error, that error does not render the warrant insufficient where the executing officer is aware of that
error and uses personal knowledge to remedy the incorrect information in the warrant.”). Addressing defendant’s
    2
      The state conceded that the warrant failed to incorporate the affidavit by
reference. However, the state argued that incorporation by reference was not a
requirement if the affidavit was attached to the warrant, and it defined attachment to include accompaniment.
178                                                State v. Breedwell

Fourth Amendment arguments, the state conceded that the
warrant was facially invalid and could not be cured by the
accompanying affidavit, but contended that the good faith
exception to the exclusionary rule applied.
          At a subsequent hearing on the motion, the parties
elicited the facts summarized above. The state admitted the
warrant, the affidavit, and the warrant return into evidence
as state’s exhibits 1A, 1B, and 1C, respectively. All three
documents bore the same stamp, indicating that they had
been filed with the court on May 29, 2018, a couple of weeks
after the search.
         The trial court denied defendant’s motion. In
explaining its ruling from the bench, the court first noted
that defendant bore the burden of proof on his warrant
challenge. The court then explained that “the bottom line”
was that “the officers only intended to search [defendant’s]
apartment, … only search[ed defendant’s] apartment,” and
“had all the information with them at the time and available
to them.” The court also noted that defendant was not “prejudiced in any way” by the warrant omission. Considering
the above, the court concluded that defendant had not met
his burden to show that the warranted search was unlawful
under Article I, section 9. As to defendant’s federal arguments, the court concluded that the good faith exception to
the exclusionary rule applied.
         Defendant entered a conditional guilty plea to
Count 2, delivery of heroin, and Count 5, delivery of methamphetamine, reserving his right to appeal the denial of
his motion to suppress.3 The court entered a judgment of
conviction on those counts, and this timely appeal followed.
         On appeal, defendant assigns error to the court’s
denial of his motion to suppress. We review that ruling
for legal error. State v. Harris, 

, 

, cert den, ___ US ___, 

, 

(2022). We consider defendant’s arguments under Article I,
section 9, before turning to his arguments under the
Fourth Amendment. See State v. Babson, 

,

 (2014) (noting Oregon’s “first things first”
  3
      The state dismissed the remaining charges.
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approach to considering state law arguments before federal
ones).
         Defendant reiterates his arguments made in the
trial court, contending that the warrant was facially invalid
and failed to meet the particularity requirement of Article I,
section 9, and that neither the affidavit nor Green’s personal
knowledge of the apartment number cured that defect.
Defendant asks that we adopt the rule that an affidavit
may cure an insufficiently particular warrant only if the
affidavit is both incorporated by reference into the warrant
and physically attached to the warrant. In the alternative,
defendant argues that, “even if Article I, section 9, does
not require both incorporation and attachment, this court
should hold that Article I, section 9, requires actual [physical] attachment at least where the warrant fails to incorporate the affidavit by reference,” because “only then can any
Oregon officer determine the particular premises for which
a search is authorized.” (Emphasis in original.) Under the
Fourth Amendment, defendant repeats his argument that
the warrant was insufficiently particular and that the good
faith exception does not apply.
         In response, the state contends that the warrant was
sufficiently particular under Article I, section 9, because with
“reasonable effort, any police officer executing the search
warrant could have located defendant’s apartment.” See State
v. Trax, 

, 

 (2003) (“A description in
a warrant of the place to be searched satisfies the particularity requirement if it permits the executing officer to locate
with reasonable effort the premises to be searched.” (Internal
quotation marks omitted.)). According to the state, any officer
could locate defendant’s apartment with reasonable efforts by
reviewing Green’s affidavit, conferring with Green himself,
speaking with the officers who had been standing outside
defendant’s apartment, or reviewing the building registry.
Alternatively, the state contends that any facial invalidity
was cured by the affidavit, because under State v. Mansor, 

, 784 n 10, 

 (2016), aff’d, 

,

 (2018) (Mansor I), the affidavit was sufficiently
attached to the warrant. As to the Fourth Amendment, the
state concedes that the warrant was defective but asserts
that the good faith exception applies.
180                                          State v. Breedwell

      PARTICULARITY UNDER ARTICLE I, SECTION 9
         We turn to our consideration of defendant’s arguments under Article I, section 9. Although the parties have
framed the issues before us in slightly different ways, we
begin by considering whether the information in Green’s
supporting affidavit may be properly considered in construing the warrant. See Mansor II, 

 (similarly
considering that question before turning to whether the
warrant met the particularity requirement). There is little
Oregon case law regarding what standards or rules apply
when the parties dispute whether an affidavit may be considered in construing a warrant, and we recognize that the
way in which a court answers that question can determine
whether the search executed pursuant to that warrant is
deemed constitutional. Those concerns lead us to preface
and ground the discussion that follows in the particularity requirement of Article I, section 9, and the purposes it
serves.
        Under Article I, section 9, “no warrant shall issue
but upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and
the person or thing to be seized.”
  “[T]he constitutional particularity requirement implicates
  two analytically distinct, but frequently practically intertwined, concepts. First, the warrant, as supplemented by
  any attached or incorporated supporting documents, must
  so clearly describe the place to be searched and the items to
  be seized and examined that officers can, with reasonable
  effort, ascertain that place and those items to a reasonable degree of certainty. Second, the warrant must, to the
  extent reasonably possible, be drawn in such a way as to
  preclude seizures and searches not supported by probable
  cause.
     “Those two concepts—specificity and overbreadth—
  again, have independent significance. For example, a
  warrant can precisely and unambiguously identify items
  to be forensically examined, satisfying the specificity concern, but nevertheless be invalid as overbroad if there is no
  probable cause to examine some of those items. However,
  the two can, and frequently do, conflate. That is, failure to
  identify with sufficient specificity the place to be searched
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   or the items to be seized and examined can sanction invasions of protected privacy unsupported by probable cause.”
Mansor I, 

 (internal quotation marks
and citations omitted). Stated more succinctly, “[r]egarding
places, the particularity requirement exists to narrow the
scope of the search to those premises for which a magistrate has found probable cause to authorize the search.”
Mansor II, 

 (internal quotation marks omitted); see also State v. Ingram, 

, 

(1992) (insufficiently particular warrants require officers
to employ discretion in deciding where to search, running
the risk that the officers “could invade privacy interests not
intended by the magistrate to be invaded and could conduct
searches not supported by probable cause”).
          Applying those principles, a hypothetical warrant
that authorizes the search of an entire apartment building
when there is only probable cause to search a single apartment unit would allow police intrusion into the remaining
apartments without probable cause. Such a warrant would
fail to meet our constitutional requirements. However, the
purposes of the particularity requirement may nevertheless be served if some other document, such as a supporting
search warrant affidavit, limits the officers’ search to the
specific apartment that was actually authorized by the magistrate’s probable cause determination.
         But a warrant affidavit can only serve that narrowing function if its status is elevated above that of a typical
warrant affidavit: The circumstances must reasonably communicate to the executing officers that the warrant and affidavit are functionally one document, such that it is appropriate for the officers to rely on the contents of the affidavit
in limiting their search. See Mansor I, 

(particularity requirement ensures that “officers can, with
reasonable effort, ascertain [the place to be searched and
the items to be seized] to a reasonable degree of certainty”
(internal quotation marks omitted)); see also Mansor II, 

 (discussing best practices to “establish a connection between the warrant and an affidavit” such that
“the contents of an affidavit should be considered in a challenge to a warrant[‘s particularity]”). Those same principles
182                                                       State v. Breedwell

underly rules under the Fourth Amendment4 requiring
incorporation by reference and attachment to ensure that a
supporting affidavit is only considered in construing a warrant if executing officers were reasonably limited by the affidavit’s contents. See, e.g., Groh v. Ramirez, 

, 557-
58, 

, 

 (2004) (“most [federal]
Courts of Appeals have held that a court may construe a
warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation,
and if the supporting document accompanies the warrant”);
U.S. v. SDI Future Health, Inc., 

 (9th Cir
2009) (“The goal of the cure by affidavit rule [under Ninth
Circuit case law] is to consider those affidavits that limit the
discretion of the officers executing the warrant.” (Internal
quotation marks omitted.)).5
         With that in mind, we consider the leading Oregon
case to have addressed the evidentiary standard that must
be met for a court to consider the contents of an affidavit in construing a warrant: Mansor II, 

.
Although the Supreme Court’s opinion in Mansor II was primarily focused on analyzing the particularity of a warrant
to search the defendant’s computers, the court began its
analysis by considering whether the information in the warrant’s supporting affidavit could be considered in construing the warrant. 

. As relevant here, the defendant
argued that the warrant was facially deficient and could not
be cured by the contents of the affidavit because “the state
failed to prove that the affidavit was attached to, or otherwise incorporated in, the warrant.”6 Mansor I, 

       The Fourth Amendment provides, in part, that “no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
     5
       Notably, however, Oregon has never adopted the federal test described
above for determining when a warrant can be construed with reference to the
affidavit.
     6
       The defendant in Mansor I argued that we should adopt the Ninth Circuit
standard requiring both incorporation and attachment. However, we concluded
that that argument was not preserved and did not address it. See 

 n 14 (“Defendant argues, for the first time on appeal, that, under the Ninth
Circuit’s conjunctive ‘cure by affidavit’ formulation, see, e.g., [SDI Future Health,
Inc., 

], the state was required to establish not only attachment, but also express incorporation by reference. However, defendant never
invoked the Ninth Circuit’s formulation before the trial court[.]”).
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787. The state asserted that the trial court record “evinced
that the affidavit was attached to the warrant when it was
executed” and argued that the defendant bore the burden
to prove otherwise. Id. at 789. The only evidence in the
record relevant to the issue had been admitted by the state
and left unrebutted by the defendant. First, although the
warrant did not expressly mention the affidavit, it incorporated “Attachment A” by reference, which was a document
that was stapled to the affidavit. Mansor II, 

n 11; Mansor I, 

. Second, the trial court
admitted certified copies of the affidavit (with Attachment
A appended), the signed search warrant, and the warrant
return together as one exhibit bearing an identical time
stamp. 

.
         On appeal, our court placed the relevant burden
on the defendant and concluded that the contents of the
affidavit could be considered in evaluating the defendant’s
warrant particularity challenge. 

. We began
by acknowledging that “ ‘the defendant bears the burden
of proving the unlawfulness of a warranted search.’ ” 

 at
789 (quoting State v. Walker, 

, 

(2011)). Thus, in challenging the lawfulness of the warrant-based seizure and search of the defendant’s computers, the
   “defendant bore the burden of establishing facts pertaining to his challenge to the validity of the warrant itself.
   Whether [the] affidavit was attached to, or otherwise sufficiently accompanied, the warrant when it was executed
   was such a fact. Accordingly, defendant bore the burden
   of proving that that circumstance did not exist. However,
   as noted, defendant adduced no proof on that matter at
   the suppression hearing—and, thus, failed to meet that
   burden.”
Mansor I, 

 (internal quotation marks,
brackets, and citations omitted; emphasis in original).
        On review, the Supreme Court agreed. Mansor II,

. Although the court did not independently
analyze the issue, it appeared to adopt our view of the defendant’s burden:
      “The Court of Appeals observed that, when a search is
   conducted pursuant to a warrant, the defendant bears ‘the
184                                                       State v. Breedwell

    burden of establishing facts pertaining to his “challenge
    [to] the validity of the warrant itself.” ’ Mansor [I], 

 (quoting Walker, 

 (brackets in
    Mansor [I])). Here, the state’s contention that the affidavit
    was attached to and referenced in the warrant at the time
    of execution was supported, as the Court of Appeals said,
    by ‘permissible, albeit hardly indubitable, inference.’ 

    Defendant presented no evidence to controvert that inference. 

 On that record, the Court of Appeals concluded
    that defendant fell short of his burden of production and
    therefore considered the affidavit to be part of the warrant
    for purposes of its review.
        “We agree with the Court of Appeals that defendant
    failed in the trial court to establish the factual basis for his
    argument on appeal; for purposes of this case, we consider
    the text of the affidavit to be part of the warrant.”
Mansor II, 

. In other words, the court appeared
to agree with our conclusion that it was the defendant’s
burden to prove that the affidavit and warrant lacked a requisite level of connection at the time the warrant was executed.7 Finally, the court closed with a warning:
    “[R]ather than relying on indirect inferences to establish a
    connection between the warrant and an affidavit, the better practice is for the warrant to include specific text from
    the affidavit or to incorporate the affidavit by express reference in the warrant. Merely attaching the affidavit or an
    exhibit with an attached affidavit to the warrant, without
    some textual reference, creates the ambiguous situation
    apparently present here.”
Mansor II, 

.
         We glean two main takeaways from Mansor I and II
that inform our consideration of whether we may consider an
affidavit in construing a warrant under Article I, section 9:
First, defendant carries the burden of proof to establish that
the affidavit should not be considered in evaluating the warrant’s particularity. The fact that the defendant bore that
    7
      We acknowledge that Mansor II was not entirely clear in its discussion of the burdens applicable to this particular warrant challenge argument.
Nevertheless, we conclude that the most sensible reading of Mansor II is that it
adopted Mansor I’s articulation of the defendant’s burden. At the very least, the
court in Mansor II did not overrule our decision in Mansor I or explicitly reject our
analysis of the relevant issue.
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burden was central to the court’s conclusion in Mansor II
that the affidavit could be considered in construing the warrant. Second, whether the circumstances establish a sufficient connection between a warrant and supporting affidavit
such that the affidavit can be considered in construing the
warrant is viewed from the perspective of the circumstances
at the time of the search. See Mansor I, 

(discussing the defendant’s failure to establish that the affidavit lacked a sufficient connection to the warrant “when it
was executed”). Mansor I and II therefore frame our inquiry
here: Did the defendant meet his burden to prove that the
affidavit was not sufficiently connected to the warrant at
the time the warrant was executed?
          However, because the defendant in Mansor I and II
failed to present any evidence to support his warrant challenge argument, the relevant analysis largely stopped there.
Neither our court nor the Supreme Court defined incorporation by reference or attachment under Oregon law. Neither
opinion explained what sort of analysis a court should
engage in if a defendant puts on evidence that an affidavit
was not sufficiently connected to the warrant to be considered in construing the warrant, or what role incorporation
by reference and attachment should play in that analysis.
Perhaps most importantly, neither opinion explained what
evidence a defendant must present to prove that an affidavit
and warrant lacked the requisite connection.8 The only guidance the Supreme Court provided on those questions was
(1) its express approval of our court’s comment that the state’s
evidence presented a “permissible, albeit hardly indubitable,
inference” that the affidavit “was attached to and referenced
in the warrant at the time of execution,” and (2) its recommendation that “[t]he better practice is for the warrant to
    8
      We note also that Mansor II did not describe the question of whether an affidavit may be considered in construing a warrant using “curing” language, unlike
many federal cases considering the same issue under the Fourth Amendment.
See, e.g., SDI Future Health, Inc., 

 (addressing whether court could
“evaluate the affidavit and the warrant as a whole, allowing the affidavit to cure
any deficiencies in the naked warrant” (internal quotation marks omitted)).
However, we understand the analysis under Article I, section 9, in essentially the
same way: A search conducted pursuant to an invalid warrant may nevertheless
be constitutional if a supporting affidavit is able to “cure” the warrant’s defects
and ensure that the search is limited to those premises for which the magistrate
found probable cause to authorize a search.
186                                         State v. Breedwell

include specific text from the affidavit or to incorporate
the affidavit by express reference in the warrant,” because
“[m]erely attaching the affidavit or an exhibit with an
attached affidavit to the warrant, without some textual reference, creates the ambiguous situation apparently present
here.” Mansor II, 

. Mansor I and II, therefore, did not declare any bright-line rule for determining
whether an affidavit may be considered in construing a
warrant, in contrast with federal cases requiring evidence
of both accompaniment and express incorporation. See SDI
Future Health, Inc., 

 (“We consider an affidavit to be part of a warrant, and therefore potentially curative of any defects, only if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is
attached physically to the warrant or at least accompanies
the warrant while agents execute the search.” (Internal quotation marks omitted.)). Rather, contrary to the state’s argument that an affidavit need only be “present and available
for immediate reference when the warrant is executed,” citing Mansor I, 

 n 10, we understand from
Mansor I and II that the assessment is a practical one based
on the totality of the circumstances.
          Thus, we are tasked with determining, as a matter of first impression, what evidence a defendant must put
forward to prove that an affidavit was not sufficiently connected to the warrant it supports to permit a court to refer
to the affidavit in construing the warrant. In so doing, we
rely on Mansor II and the body of Oregon law discussing the
purposes animating the particularity requirement generally. As we explained earlier, the particularity requirement
aims to ensure that executing officers search only those
areas for which the issuing magistrate found probable cause
to search. See Mansor II, 

 (“the particularity
requirement exists to narrow the scope of the search to those
premises for which a magistrate has found probable cause to
authorize the search” (internal quotation marks omitted)).
When the face of a warrant fails to be sufficiently particular
to provide executing officers with appropriate limitations,
it is possible that a supporting affidavit may provide those
limitations and cure the defect. But the affidavit must be so
connected to the warrant that the two are functionally one
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document when the warrant is executed to actually provide
those limitations. Otherwise, an officer may be left free to
use discretion during the search, something which is directly
at odds with the limits Article I, section 9, was intended to
enforce. See Ingram, 

 (insufficiently particular
warrants require officers to employ discretion in deciding
where to search, creating the risk that the officers “could
invade privacy interests not intended by the magistrate to
be invaded and could conduct searches not supported by
probable cause”).
          Defendant contends that an affidavit and warrant
must be so combined that any officer holding legal authority to execute the warrant would be limited by the contents
of the affidavit. In other words, defendant contends that
a warrant addressed to “any police officer in the state of
Oregon” cannot be cured by an affidavit unless any officer
in the state would know to be limited by that document.
However, that argument frames the inquiry so widely that it
loses sight of the purposes of the particularity requirement.
The particularity requirement is concerned with ensuring
that the scope of a search is appropriately limited to the
premises for which the issuing magistrate found probable
cause to authorize the search. As relevant here, the inquiry
is focused on whether the warrant reasonably communicated the boundaries of the magistrate’s probable cause
determination to the executing officers. It looks to what the
circumstances reasonably communicated to the actual executing officers and is not focused on hypothetical executing
officers who were not in fact involved in the actual search.
See Mansor II, 

 (“the state’s contention that
the affidavit was attached to and referenced in the warrant
at the time of execution was supported”); Wayne R. LaFave,
2 Search and Seizure § 4.5(a), 700 (6th ed 2020) (it is appropriate to consider the affidavit in construing the warrant if
“it is clear that the executing officers were in a position to
be aided by these documents”). Although the standard is an
objective one, it is nevertheless planted in the circumstances
as they actually occurred, like our constitutional particularity standard generally. See Trax, 

 (“a description in a warrant is constitutionally sufficient if it permits
the executing officer to locate, with ‘reasonable effort,’ the
188                                                      State v. Breedwell

premises intended to be searched”); Kauppi, 

 (“an executing officer permissibly may draw upon that
officer’s personal knowledge, as well as information obtained
through additional, ‘minimal’ reasonable efforts, regarding
the proper location of the search”).9
         Thus, we conclude that, for a defendant to establish that an affidavit cannot be considered in construing the
warrant it supports, the defendant must show that, under
the totality of the circumstances, there was not a sufficient
connection between the warrant and the affidavit for the
executing officers to have reasonably believed that the warrant and affidavit were functionally one document, such that
it was not appropriate for the officers to rely on the contents
of the affidavit in limiting their search. Evidence establishing that the affidavit and warrant were physically attached
or that the warrant expressly incorporated the affidavit are
both relevant. Indeed, as Mansor II instructs, those facts constitute the best evidence that a warrant and affidavit were
functionally one document. See 

 (“[T]he better
practice is for the warrant to include specific text from the
affidavit or to incorporate the affidavit by express reference
in the warrant. Merely attaching the affidavit or an exhibit
with an attached affidavit to the warrant, without some textual reference, creates the ambiguous situation apparently
present here.”). Nonetheless, neither type of evidence is dispositive, nor are both required to defend against a defendant’s challenge. Rather, the test under Article I, section 9,
is a practical one, and courts should consider the totality of
the circumstances that bear on whether the executing officers reasonably understood that the warrant and affidavit

    9
      Additionally, we note that much of defendant’s argument that we must view
the inquiry from the perspective of “any officer” is supported by citation to State
v. Bush, 

, 

 (2001), rev den, 

 (2002)
(describing the particularity inquiry as “whether any police officer executing the
search warrant could ascertain with reasonable effort the identity of the place
to be searched” (quotation marks and emphasis omitted)), and State v. Davis,

, 

 (1991) (stating that an “officer’s independent
knowledge cannot cure an erroneous description” in a warrant). However, those
cases do not appear to reflect current law after the issuance of Trax and Kauppi.
See Kauppi, 

 (explaining Trax and stating that a clerical error
“does not render the warrant insufficient where the executing officer is aware of
that error and uses personal knowledge to remedy the incorrect information in
the warrant”).
Cite as 

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were functionally one document. Relevant facts may relate
to the warrant’s issuance, such as evidence that the warrant
expressly incorporated the affidavit when issued, or that
the executing officer was also the affiant and witnessed the
magistrate sign and date both documents. Relevant facts
may also relate to the warrant’s execution, such as evidence
that the executing officers did not have the affidavit with
them during execution. And, as Mansor II illustrates, there
may be factual scenarios where there is only a “permissible,
albeit hardly indubitable, inference” that the affidavit was
reasonably considered part of the warrant at execution, creating an “ambiguous situation.” 

. Presented
with those facts and no contravening evidence from a defendant, however, the only appropriate conclusion is that the
defendant failed to meet his burden to prove that the affidavit was not part of the warrant.10

         We acknowledge that this standard is not the standard proposed by either party, both of whom proposed rules
to establish that an affidavit is part of a warrant by a set
formula of attachment, incorporation by reference, or both.
However, those proposed rules require a rigidity that we
conclude is not required by our constitutional standards.
See Mansor II, 

 (considering contents of affidavit in construing warrant even though warrant did not
mention affidavit and it was “ambiguous” whether affidavit
and warrant were attached at time of execution). The relevant inquiry does not reduce solely to whether an affidavit
and warrant are cross-referenced, stapled, paperclipped, or
stored within a single folder. A variety of factual scenarios
may support a defendant’s arguments that it was not objectively reasonable for the officers who executed the search
to understand the supporting affidavit as functionally part
of the warrant and a limit on their search authorization.
For instance, a circumstance where the affidavit was not
present at execution would be strong support for such an

    10
       The defendant’s burden of proof when challenging a warrant is “to establish by a preponderance of the evidence that the warrant is defective.” State v.
Cannon, 

, 

 (2019). Because Mansor II extended
the defendant’s burden of proof on his warrant challenge to his subsidiary argument that the affidavit could not be considered in construing the warrant, the
same preponderance standard applies to that issue as well.
190                                        State v. Breedwell

argument. But we do not attempt to quantify or prescribe
all the ways in which a court may reasonably reach that
conclusion.
         Finally, we apply that standard to the facts of this
case and conclude that defendant did not meet his burden
to establish that the affidavit lacked the requisite connection to the warrant. Here, the relevant evidence elicited at
the suppression hearing was limited to the following: The
warrant did not expressly incorporate the affidavit by reference or otherwise refer to the affidavit, and the affidavit and
warrant were not physically attached by paperclip, staple,
or other means. However, after the judge signed the warrant and affidavit in Green’s presence, Green placed both
documents side by side in a single manilla case file folder
and brought the folder with him to execute the warrant.
Both documents bore the judge’s signature and the date of
May 17, 2018. The officers did not rely on either document
during the search—instead, Green relied on his memory,
and the other officers relied on Green when questions arose.
However, Green testified that he would have looked to the
warrant and affidavit had any confusion arose regarding
the scope of the search as authorized. The warrant, affidavit, and warrant return were subsequently filed with the
court on May 29.
         Considering those facts, defendant did not meet his
burden to establish that the affidavit and warrant lacked
the requisite connection for Green and the other executing officers to have reasonably viewed them as functionally
one document that imposed limitations on their search.
Defendant elicited some evidence in support of his challenge, unlike in the defendant in Mansor I and II. Notably,
the warrant did not expressly incorporate the affidavit by
reference, nor were the documents physically attached.
However, that evidence does not establish that the affidavit and warrant lacked the requisite connection for the
executing officers to have reasonably understood that the
warrant and affidavit were functionally one document such
that they could refer to the affidavit in executing the warrant. Green testified that he personally delivered his affidavit and the warrant to the judge, who then signed the
Cite as 

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warrant and affidavit before Green placed both documents
side-by-side in a manila folder and brought the folder with
him to execute the warrant. That evidence established that,
as the affiant officer, Green had personal knowledge that
the judge’s probable cause determination was based on both
the warrant and affidavit, and that the warrant and affidavit in the manila folder were the documents that the judge
signed. Considering those facts, the omission of an express
reference in the warrant incorporating the affidavit or any
staple or paperclip physically attaching the documents are
insufficient to establish that it would not have been reasonable for Green to have understood the affidavit and warrant to be functionally one document that together limited
the scope of the search. Even considering that other officers
assisted in the warrant execution and that none of the executing officers looked at the affidavit during that time, the
evidence was still insufficient to meet defendant’s burden
on this record when considering the following facts: (1) the
remaining executing officers who actually participated in
the search of defendant’s apartment (rather than those who
assisted by simply cataloguing items) had accompanied
Green to defendant’s apartment during the initial investigation and had been briefed on Green’s investigation; (2) two
of those officers remained outside of defendant’s apartment
while Green sought the warrant; (3) all of the executing officers understood that Green was the affiant officer who had
obtained the warrant; (4) Green was on the scene during
the execution; (5) Green brought the affidavit and warrant
with him during the search; and (6) the executing officers
relied on Green to answer questions about the scope of the
search. In total, evidence that the warrant omitted any
express reference to the affidavit, that the documents were
not physically attached, and that the executing officers did
not themselves refer to the affidavit throughout the search,
under the totality of the circumstances, is insufficient to
meet defendant’s burden. At most those facts raise ambiguity as to whether the executing officers reasonably understood the affidavit to be part of the warrant. They do not
prove the reverse—that the executing officers could not have
reasonably understood that the affidavit and warrant were
functionally one document—especially in light of evidence
192                                            State v. Breedwell

that the affidavit was side-by-side with the warrant in a
manilla case folder, present at execution, and available for
reference.
         With that preliminary issue resolved, we turn to
whether the search warrant (including the affidavit) met the
particularity requirement of Article I, section 9, and readily conclude that it did. In determining whether a warrant
describes the place to be searched with sufficient particularity, we consider whether the description “permits the executing officer to locate, with reasonable effort, the premises
intended to be searched.” Trax, 

 (internal quotation marks omitted). Here, the warrant to search defendant’s apartment specified the street address of defendant’s
apartment building, and the affidavit named defendant
as the targeted individual and specified the unit where he
resided. Together, those documents specified the place to be
searched with constitutionally sufficient particularity.
     PARTICULARITY UNDER THE FOURTH
 AMENDMENT AND THE GOOD FAITH EXCEPTION
    TO THE FEDERAL EXCLUSIONARY RULE
        We turn to defendant’s arguments under the Fourth
Amendment. In the trial court and before us on appeal, the
state does not contest that the warrant violated the Fourth
Amendment particularity requirement and was not cured
by the supporting affidavit. See generally Groh, 

 (“most Courts of Appeals have held that a court may
construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of
incorporation, and if the supporting document accompanies
the warrant”). Instead, the only issue before us is whether
the good faith reliance exception to the federal exclusionary
rule should apply. The trial court ruled that the good faith
exception did apply, stating that the officers
   “never did anything other than intending to be at his apartment. And, there are kind of unique circumstances where
   they meet, they talk [about the investigation thus far.] …
   They went there. They did a knock and talk. … [T]he affidavit was mostly filled out but for … what happened at
   the knock and talk. They went straight back to the apartment. So, I think—there’s not a part where the State acts
Cite as 

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   in bad faith where the police are doing something wrong
   or trying to take an advantage. So, … I think they act in
   good faith all along but for lack of attention to detail, which
   everyone up the chain missed.”
In written findings, the court also found that the officers
were not “interested in searching” any other apartment in
the building, that the affidavit and warrant “were available
to the officers during the search,” that the officers “searched
apartment #38 and no other” apartment unit, and that
“Green testified that they did not reference the warrant or
affidavit during the execution of the warrant but had there
been confusion they would have referred to the affidavit.”
         We summarize the controlling law on that issue.
Evidence obtained in violation of the Fourth Amendment is
usually subject to the judicially developed exclusionary rule.
Illinois v. Krull, 

, 

, 

 (1987). However, the United States Supreme Court
has long stated that the exclusionary rule is “designed to
safeguard Fourth Amendment rights generally through
its deterrent effect,” restricting its application “to those
areas where its remedial objectives are thought most efficaciously served.” United States v. Peltier, 

, 538-
39, 

, 

 (1975). Specifically, the
rule should “deter police misconduct rather than … punish the errors of judges and magistrates.” United States v.
Leon, 

, 

, 

 (1984).
“[E]vidence should be suppressed only if it can be said that
the law enforcement officer had knowledge, or may properly
be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Krull, 

 (internal quotation marks omitted).
         The Supreme Court established the “good faith
exception” to the exclusionary rule in Leon. 

-
23. There, the court explained that the exclusionary rule
should not apply to evidence obtained through an invalid
search warrant if the warrant was issued by a neutral magistrate and the officer reasonably relied on it. 

 The court
explained:
   “Searches pursuant to a warrant will rarely require any
   deep inquiry into reasonableness, for a warrant issued
194                                             State v. Breedwell

      by a magistrate normally suffices to establish that a law
      enforcement officer has acted in good faith in conducting
      the search. Nevertheless, the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively
      reasonable, and it is clear that in some circumstances the
      officer will have no reasonable grounds for believing that
      the warrant was properly issued.”

 (brackets, internal quotation marks, and citations omitted). For example, “depending on the circumstances of the
particular case, a warrant may be so facially deficient—i.e.,
in failing to particularize the place to be searched or the
things to be seized—that the executing officers cannot reasonably presume it to be valid.” 

. In short, the goodfaith inquiry is “whether a reasonably well[-]trained officer
would have known that the search was illegal in light of all
of the circumstances.” Herring v. United States, 

, 

, 

 (2009) (internal quotation marks omitted).
         The court has applied Leon a number of times, but
one of those cases is particularly relevant here. In Herring, an
officer arrested the defendant in reliance on a police record
indicating that there was an outstanding warrant for the
defendant’s arrest. 

. However, that record was
later determined to be erroneous due to a police employee
error. 

. The court concluded that the good faith
exception applied because the error was the result of “nonrecurring and attenuated negligence” that did not require the
deterrence of exclusion. 

.
      “To trigger the exclusionary rule, police conduct must be
      sufficiently deliberate that exclusion can meaningfully
      deter it, and sufficiently culpable that such deterrence is
      worth the price paid by the justice system. As laid out in
      our cases, the exclusionary rule serves to deter deliberate,
      reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this
      case does not rise to that level.”

        Applying those principles, we readily conclude that
the good faith exception applies here. The warrant errors
Cite as 

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that occurred here were the result of isolated negligence.
See Herring, 

. The evidence supports that
Green was inexperienced in writing warrants, that neither
Green nor any of the other executing officers were aware
of the omission at the time of the search, and that Green
did not omit the apartment number intentionally in an
effort to search other apartments in defendant’s building.
There is no evidence that any of the officers executing the
warrant acted in a dishonest or reckless manner or sought
to take advantage of the error to expand the scope of the
search. See Krull, 

 (“[E]vidence should be
suppressed only if it can be said that the law enforcement
officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under
the Fourth Amendment.” (Internal quotation marks omitted.)). Additionally, the warrant error in this case was one
that Green, his sergeant, a deputy district attorney, and
the issuing judge all missed—thus, we cannot say that the
defect was so grossly negligent that “a reasonably well[-]
trained officer would have known that the search was illegal in light of all of the circumstances.” Herring, 

 (internal quotation marks omitted). For all those
reasons, the remedial objectives and deterrence effect of
the federal exclusionary rule would not be served by the
exclusion of this particular evidence. See Peltier, 

.
         Notably, the parties do not rely on the above United
States Supreme Court cases setting forth the general rule,
instead pointing us to SDI Future Health, Inc., 

, and U.S. v. Luk, 859 F2d 667 (9th Cir 1988). “[W]e are
not bound by decisions of the Ninth Circuit—or any other
federal circuit—even on questions of federal law.” State v.
Ward, 

, 

 (2020); see also Van De
Hey v. U.S. National Bank, 

, 95 n 9, 

(1992) (“only decisions of the Supreme Court of the United
States are binding on this court in the interpretation of
federal law”). However, we “often give particular weight to
[Ninth Circuit] decisions because Oregon lies in that circuit.” Miller v. Pacific Trawlers, Inc., 

, 612
n 23, 

 (2006). Thus, we consider those cases for
their persuasive value.
196                                          State v. Breedwell

         Doing so, we conclude that Luk is nearly indistinguishable from the instant case, and, like the controlling
Supreme Court law, supports the conclusion that the officers
here reasonably relied on their belief that the warrant was
valid, and that Green’s mistake in failing to either include
defendant’s apartment number in the warrant or incorporate the affidavit into the warrant by reference is not the
type of police misconduct to which the federal exclusionary
rule applies.
         In Luk, the search warrant at issue lacked sufficient particularity. 859 F2d at 676. Although the warrant
could have theoretically been cured by a supporting affidavit that contained the missing information, the affidavit
was not expressly incorporated into the warrant by reference and therefore did not satisfy the federal test requiring
express incorporation by reference for an affidavit to cure a
deficient warrant. Id. at 676-77. Thus, the court turned to
whether the evidence discovered as a result of the deficient
warrant was subject to suppression. Id. The Ninth Circuit
concluded that “the executing officers’ reliance upon the affidavit [could serve] as evidence of their reasonable reliance
on the validity of the warrant or their good faith.” Id.
         The court turned to the facts, noting that the affidavit “provided the particularity that the warrant lacked,”
and that the agents had relied on the affidavit in limiting
their search to items for which there existed probable cause
to seize. Id. at 677.
   “Agent Bammer, who was specifically authorized to execute the warrant, read Agent Koplik’s affidavit prior to the
   search; at the briefing immediately prior to the warrant’s
   execution, Koplik apprised Bammer and the two other
   agents who assisted in the search of the particular items
   to seize; Koplik was present at the premises and advised
   the agents concerning what items were properly within the
   scope of the search; and the agents specifically relied on
   the affidavit in determining at the scene what items were
   properly within the scope of the search.”
Id. In other words, the evidence showed that the agents
limited their search to only those items described in the
affidavit—for which there was probable cause to seize—rather
Cite as 

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than seizing “evidence to the full extent of [their] overbroad
warrant.” Id. at 677-78. The court noted that it was “unclear
from the record whether the affidavit was actually in hand
during the search,” but concluded that even “the absence
of the affidavit at the scene [did not preclude] a finding of
good faith.” Id. at 677 n 10. In light of those facts, the court
concluded that the warrant there, considered “in conjunction with the affidavit,” was not “so facially overbroad as
to preclude reasonable reliance by the executing officers.”
Id. at 678.
          We consider the Ninth Circuit’s analysis in Luk to
be persuasive, supporting our conclusion that Green and the
other officers reasonably relied on the unincorporated affidavit to limit their search to those areas for which there
existed probable cause to search. Here, Green had already
drafted much of the warrant affidavit before visiting defendant’s apartment, and he used that partial affidavit to brief
Jacobson, Martley, and Honel before they approached defendant’s door. After defendant’s arrest, Green added to the
partial affidavit to detail the morning’s visit and arrest of
defendant and obtained a search warrant. Later that same
day, when the officers executed the warrant, the affidavit
was available for use as a reference and the officers in fact
limited their search to only the specific apartment unit
described in the affidavit. Although other officers attended
the warrant execution to catalogue the seized property on
property receipts, the actual search team was limited to
officers who had been briefed on the partial affidavit that
morning and who understood the bounds of their search to
pertain to only defendant’s apartment. As in Luk, the officers here reasonably relied on the information in the affidavit to limit their search to the area for which the magistrate
had found probable cause to search. Defendant places significant weight on Green’s testimony—and the court’s later
finding—that none of the officers actually referenced the
affidavit during the search. However, we have not discovered any controlling law that would render the good faith
exception inapplicable merely because executing officers,
who were aware of the contents of an affidavit and relied
on that information to limit their search, did not need to
refer back to the document while executing the warrant. See
198                                         State v. Breedwell

Luk, 859 F2d at 677 n 10 (although it was “unclear from the
record whether the affidavit was actually in hand during
the search,” even “the absence of the affidavit at the scene
[does not preclude] a finding of good faith”). In short, we conclude that Green and the other officers reasonably relied on
the contents of Green’s affidavit during their search.

         Although defendant argues that SDI Future Health,
Inc. is sufficiently similar and should control, we disagree.
There, the Ninth Circuit applied Luk and concluded that
the good faith exception did not apply. 

. The
court first concluded that the supporting affidavit was part
of the warrant, but that the warrant was still overbroad in
some respects. 

. Specifically, the warrant
authorized the search and seizure of categories of items
such as “non-privileged internal memoranda and E-mail”;
“[d]ocuments relating to bank accounts, brokerage accounts,
trusts”; and “[r]olodexes, address books and calendars.”

. Those categories were so broad, even when read
in light of the limitations provided by the incorporated affidavit, that they bore no relation to the magistrate’s determination that probable cause existed to search specifically for
evidence relating to SDI’s involvement in fraudulent sleep
studies. 

.

         The court then turned to the good faith exception
and whether the search was conducted in good faith reliance upon an objectively reasonable search warrant, citing
Luk for the rule that “where a warrant is defective without incorporating a supporting affidavit, the good faith
exception may still apply” if the government is able to show
“that the officers who executed the search actually relied
on the affidavit” to limit their search. 

. Although
the record showed that the affiant officer “had her search
team read her affidavit, briefed the team on its contents
and what items they were to search for, and was present
during the search,” those facts were insufficient to show
that the searching officers “actually relied” on the affidavit
to limit the warrant’s overbreadth, particularly given the
magistrate judge’s finding that there was “[n]o evidence …
that the agents in fact relied on the affidavit to restrict their
search.” 

 (brackets and omissions in original).
Cite as 

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         We do not find SDI Future Health, Inc. sufficiently
similar such that we would rely on it as persuasive. In SDI
Future Health, Inc., the warrant was fatally overbroad even
when construed in conjunction with the affidavit. In other
words, the executing officers could not, and did not, reasonably rely on the affidavit to limit the warrant’s overbreadth.
Here, in contrast, the warrant would have been sufficiently
particular under the Fourth Amendment if construed in conjunction the warrant, and the officers did limit their search
in accordance with the magistrate’s probable cause determination by relying on the contents of the affidavit. Again, the
fact that the officers did not actually reference the affidavit
document during the search is not dispositive; the issue is
whether the officers’ reliance on the validity of the warrant,
though mistaken, was objectively reasonable. See Luk, 859
F2d at 677 n 10 (even “the absence of the affidavit at the
scene [does not preclude] a finding of good faith”). For those
reasons, we do not find SDI Future Health, Inc. persuasive.
         In conclusion, considering the supporting affidavit
in this case as part of the search warrant for defendant’s
apartment, the warrant met the particularity requirement
of Article I, section 9. Additionally, although the warrant
was facially invalid under Fourth Amendment law, the good
faith exception to the federal exclusionary rule applies. The
trial court did not err in denying defendant’s motion to suppress the evidence discovered in his apartment pursuant to
the warrant. Accordingly, we affirm.
        Affirmed.
        POWERS, J., concurring.
         I fully concur with the majority opinion and, in particular, its adherence to our conclusion in State v. Mansor,

, 

 (2016) (Mansor I), aff’d, 

, 

 (2018), that places the burden on the
defendant to establish facts pertaining to the validity of the
warrant itself when a defendant challenges the lawfulness
of the warrant-based seizure. See 323 Or App at 183-85. If,
however, we were writing on a clean slate—and if the parties properly engaged in the issue before the trial court and
before us—it is unclear to me why the state would not have
200                                        State v. Breedwell

the burden in this situation akin to a challenge to the existence of an arrest warrant.
         As an initial matter, our prior decision in Mansor I
speaks directly to that issue and fidelity to stare decisis
means that we start from the assumption that our prior
cases were decided correctly. See, e.g., State v. Civil, 

, 

 (2017) (quoting Farmers Ins. Co.
of Oregon v. Mowry, 

, 

 (2011)). Even
more important, however, is that defendant did not preserve
a challenge to the burden issue and also did not ask us in
his opening brief to revisit the conclusion in Mansor I about
who has the burden, which generally should be fatal in all
respects except, perhaps, in the most extraordinary circumstances. See John Hyland Const., Inc. v. Williamsen & Bleid,
Inc., 

, 

 (2017) (explaining
that the preservation requirement “is a fundamental principle of appellate jurisprudence, serving the important policy
goals of fairness to the parties and the efficient administration of justice. … [T]he reason for the rule is not merely
to promote form over substance but to promote an efficient
administration of justice and the saving of judicial time.”
(Internal quotation marks and citation omitted.)).
         In future cases, however, it may be worth examining why the state does not have the burden in this type
of situation, just as it does for certain challenges to arrest
warrants. For example, we recently concluded in State v.
Perrodin, 

, 

 (2021), that
the state has the burden of production when, following evidence discovered after a warrant-based arrest, a defendant
moves to suppress on the grounds that the warrant was
invalid because it was not supported by an oath or affirmation. That is, when the existence of a valid warrant is at
issue, the state has the responsibility for the initial showing to produce a valid warrant, complete with an oath or
affirmation.
        Here, defendant is in a similar position challenging
the existence of a valid search warrant, which in this case
is dependent on an affidavit being incorporated to meet the
particularity requirement. Mansor I places the burden on
the defendant to prove that an affidavit was not attached or
Cite as 

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not otherwise sufficiently accompanied when the warrant
was executed. 

. Where, like this case,
defendant was not even present when the warrant was executed, it is difficult to understand why the defendant is saddled with that initial burden of production at a suppression
hearing.
        In my view, we are bound by Mansor I and that ends
the matter, which is why I fully concur with the majority
opinion. In a future case, however, if adequately preserved
and presented, I believe it is worth revisiting the question
whether a defendant carries the burden of proof to establish that the affidavit should not be considered in evaluating whether a warrant meets the particularity requirement
under the state constitution.