State v. Vesa

                                        674

  Argued and submitted April 29, 2022; in Case No. 19CR17823, reversed and
   remanded; in Case No. 18CR78326, remanded for resentencing, otherwise
                          affirmed March 22, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    BENJAMIN KALEB VESA,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                      19CR17823, 18CR78326;
                    A173385 (Control), A173386
                                    

    While executing a search warrant on defendant’s cellphone in connection
with a robbery investigation, police officers discovered nude photographs and
sexually explicit videos of a minor, which led them to obtain a second warrant
that resulted in the seizure of those images. Defendant appeals the subsequent
judgments convicting him of using a child in a display of sexually explicit conduct and first-degree encouraging child sexual abuse (Case No. 19CR17823) and
attempted second-degree robbery, second-degree kidnapping, and menacing
(Case No. 18CR78326). In a single assignment of error, he challenges the trial
court’s denial of his motion to suppress the sexually explicit photographs and
videos, asserting that the warrants were constitutionally invalid. Held: The first
warrant did not satisfy the particularity requirement in Article I, section 9, of the
Oregon Constitution, because it was not specific enough as to what information
the officers executing the warrant were supposed to look for in the “photographs”
and “videos” on defendant’s cellphone. The second warrant derived from the first
warrant. The trial court therefore erred in denying the motion to suppress.
   In Case No. 19CR17823, reversed and remanded. In Case No. 18CR78326,
remanded for resentencing; otherwise affirmed.




    Ulanda L. Watkins, Judge.
   Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Cite as 

 (2023)                       675

   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.*
   AOYAGI, P. J.
   In Case No. 19CR17823, reversed and remanded. In
Case No. 18CR78326, remanded for resentencing; otherwise
affirmed.




______________
   * Jacquot, J., vice James, J. pro tempore.
676                                             State v. Vesa

        AOYAGI, P. J.
         While executing a search warrant on defendant’s
cellphone in connection with a robbery investigation, police
officers discovered nude photographs and sexually explicit
videos of a minor, which led them to obtain a second warrant allowing a broader search of the cellphone. Defendant
was subsequently indicted in two separate cases. He moved
to suppress the seized images, arguing that the warrants
were constitutionally invalid. The trial court denied suppression. In Case No. 19CR17823, defendant was convicted
of using a child in a display of sexually explicit conduct and
first-degree encouraging child sexual abuse, based on the
seized images. In Case No. 18CR78326, he was convicted
of attempted second-degree robbery, second-degree kidnapping, and menacing. Defendant was sentenced on all convictions together. In this consolidated appeal, defendant
raises a single assignment of error, challenging the denial
of his motion to suppress. We agree with defendant that the
trial court should have granted the motion, because the first
warrant did not satisfy the particularity requirement in
Article I, section 9, of the Oregon Constitution, and the second warrant was derivative of the first warrant. Accordingly,
we reverse and remand in Case No. 19CR17823, and we
remand for resentencing in Case No. 18CR78326.
                           FACTS
          E is defendant’s former girlfriend. On or about
November 15, 2018, defendant sent E a message on
Instagram requesting that she unblock him. E had blocked
defendant on her phone and social media since their
break-up a few months earlier. E and defendant exchanged
text messages from November 15 to 17. On November 17,
they agreed to meet in person. E picked up defendant in her
car, and they parked and talked. Eventually, they began to
argue. According to E, defendant prevented her from leaving, lifted his shirt to reveal a handgun, and forced her to
withdraw $800 from an ATM to pay him back for allegedly
overdrawing his bank account while they were together.
During the incident, E saw defendant use his cellphone and
believed that he was texting someone. E eventually escaped
and ran for help. Defendant ran from the car, and the police
Cite as 

 (2023)                             677

were unable to locate him until a week later, when he was
arrested. Defendant’s cellphone was seized at the time of his
arrest.

         On December 17, 2018, Detective Turpin applied for
a warrant to search defendant’s cellphone. In his supporting affidavit, Turpin summarized the robbery investigation,
including E’s interview statements. He also described what
he knew from training and experience. As relevant here, he
averred that smartphones contain large amounts of digital
information, such as photographs, videos, audio recordings,
text messages, text message logs, email messages, phone
call logs, contact lists, voicemails, positioning information,
computer applications (apps), passwords for other electronic
devices and programs, financial records, internet search logs,
internet usage logs, and location positioning information. He
described how information from cellphones “can be important in a criminal investigation,” including that text messages “can explain a person’s thoughts, actions and plans,”
that photographs or videos “can depict a person’s actions
and experiences,” that call logs “can indicate who a person
has been communicating with,” and that location information “can provide investigators with information regarding
a person’s whereabouts and path of travel.” Regarding text
messaging, he explained that there are “two main types” for
cellphones: Short Message Service (SMS), which is just text,
and Multimedia Messaging Services (MMS), which can contain “images, audio, videos and other digital files.” Turpin
also explained how data can be embedded in digital photographs and “can be very useful to investigators.”

         Based on E’s statements and his own training and
experience, Turpin asserted that he had probable cause to
believe that defendant had committed first-degree robbery,
second-degree kidnapping, unlawful use of a weapon, coercion, and menacing, and that evidence of those crimes would
be found on defendant’s seized cellphone. Turpin requested
a warrant to search the cellphone for “any” evidence of those
crimes, but then specified that the search would be limited
to the date range of November 15, 2018 to November 23,
2018, and that it would be limited to photographs, videos, text messages (SMS and MMS), Facebook Messenger,
678                                                             State v. Vesa

Snapchat, Twitter, Instagram, any other installed messaging applications, email, voice messages, voicemail messages,
call logs, contact lists, and cloud storage. The signed warrant is consistent with those date and data type limitations.
         In the course of executing the warrant, officers discovered nude photographs and sexually explicit videos of a
16-year-old girl, C, on defendant’s cellphone. Turpin knew
and recognized C, which is how he knew that C was a minor.
On February 13, 2019, Turpin obtained a second warrant
to search defendant’s cellphone, this time for evidence of
certain child sex crimes, with a date range of July 1, 2018
to November 23, 2018. For present purposes, it is undisputed that Turpin relied on nude photographs and sexually
explicit videos of C that were within the scope of the first
warrant to establish probable cause for the second warrant.1
A total of six sexually explicit videos of C were seized during
execution of the second warrant.
         Defendant was indicted in two separate cases. Based
on the incident with E, he was charged in Case No.
18CR78326 with first-degree robbery, second-degree robbery, second-degree kidnapping, unlawful use of a weapon,
coercion, and menacing. Based on the six sexually explicit
videos of C, he was charged in Case No. 19CR17823 with six
counts of using a child in display of sexually explicit conduct
and two counts of encouraging child sex abuse.
         Defendant moved to suppress the evidence found on
his cellphone—specifically the nude photographs and sexually explicit videos of C, which the parties agreed was the
only relevant evidence that was found—based on the first
warrant being invalid under Article I, section 9,2 and the second warrant being derivative of the first warrant. Defendant
conceded that Turpin’s affidavit established probable cause

     1
       In the trial court, defendant initially challenged the manner in which the
first warrant was executed, which resulted in officers viewing 48,864 photographs and 1,617 videos on the cellphone without date limitation. However, upon
questioning by the court, regarding the fact that the specific evidence that defendant was seeking to suppress came within the date range of the first warrant,
defendant effectively abandoned that argument and does not pursue it on appeal.
     2
       Defendant also challenged the warrant under the Fourth Amendment to
the United State Constitution, but we do not discuss that argument, given our
disposition.
Cite as 

 (2023)                             679

to search the cellphone for text messages and Instagram
messages and that the nine-day timeframe in the warrant
was appropriate. He argued, however, that probable cause
did not exist to search for any other types of data, such that
the warrant was overbroad. He also argued that the search
commands were not specific enough. The state defended the
first warrant in all respects. As for the second warrant, both
parties agreed that its validity depended on the validity of
the first warrant. That is, if the first warrant was valid,
then so was the second warrant, but if the first warrant was
invalid, then so was the second warrant.
        After hearing the parties’ arguments, as well as the
testimony of Turpin and the officer who forensically examined the cellphone, the trial court denied the motion to suppress. The court concluded that Turpin had probable cause
to search defendant’s cellphone for videos and photographs
in the nine-day timeframe at issue and that the warrant
was “specific enough in describing what it was seeking to
find.”
         Defendant entered a conditional guilty plea in Case
No. 19CR17823, reserving his right to appeal the denial of
his motion to suppress, and was convicted of using a child
in a display of sexually explicit conduct (Count 1) and first-degree encouraging child sexual abuse (Count 7). In Case
No. 18CR78326, defendant pleaded no contest to attempted
second-degree robbery (Count 2), second-degree kidnapping (Count 3), and menacing (Count 6) and was convicted
on those charges. All other charges in both cases were dismissed. Defendant was sentenced together in both cases. He
appeals both judgments in a consolidated appeal.
                         ANALYSIS
         Article I, section 9, provides that “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.” The particularity
requirement includes two related but distinct concepts: specificity and overbreadth. State v. Mansor, 

,

 (2018). A warrant must be specific enough to
allow an officer to identify with reasonable effort the place
to be searched and the items to be seized. 

 (applying State
680                                             State v. Vesa

v. Blackburn/Barber, 

, 

 (1973)). It
also must not permit a search broader than the probable
cause that the affidavit supports. 

 (citing State v. Reid,

, 

 (1994)). We review particularity
challenges, as relevant to the denial of a motion to suppress
evidence found in a warranted search, for legal error. State
v. Paye, 

, 

 (2021).
         In this case, defendant argues that the first warrant to search his cellphone was both overbroad and insufficiently specific. Because it is dispositive, we address only
the specificity issue, while acknowledging that there is some
slippage between the two issues, particularly when reading
a warrant and affidavit together. As to specificity, defendant argues that the warrant’s search commands were not
specific enough, in that they referred to broad categories of
data, including “photographs” and “videos,” without any limitation except date. As he did in the trial court, defendant
argues that the date limitation alone does not save the warrant from a lack of specificity. The state disagrees, arguing
that, when read together with Turpin’s affidavit, the search
commands in the warrant are implicitly limited to searching for evidence of “communications” relevant to the alleged
crimes against E, and thus the warrant was sufficiently
specific. Defendant takes issue with the state’s argument
on appeal, contending that it is inconsistent with the prosecutor’s arguments to the trial court, that it is inconsistent
with the warrant on its face, and that it depends on a misconception of what it means to read a warrant and affidavit
together under Mansor.
         We begin our analysis with some preliminary
matters. First, we will consider the warrant and affidavit together, as both parties acknowledge is appropriate,
because defendant did not controvert that the affidavit was
physically attached to the warrant. See Mansor, 

 (describing the defendant’s burden of proof in a warrant challenge). Second, we agree with defendant that the
only information that the trial court could consider in deciding whether the warrant was sufficiently particular was
that contained in the warrant and affidavit, and we therefore do not consider the officers’ testimony at the suppression hearing, nor do we consider any external sources cited
Cite as 

 (2023)                                                681

by the state at oral argument. See State v. Cannon, 

, 

 (2019) (“In reviewing whether a
search warrant was supported by probable cause, we consider only those facts put before the magistrate in the supporting affidavit, along with reasonable inferences that can
be drawn from them.”).
         Third, as previously mentioned, it is undisputed
that there was probable cause to search defendant’s cellphone for text messages and Instagram messages for the
period November 15, 2018 to November 23, 2018—and we
therefore assume without deciding that the search commands for those data types were sufficiently particular
and otherwise valid. Finally, as previously mentioned, the
nude photographs and sexually explicit videos of C found on
defendant’s cellphone are the only evidence that defendant
seeks to suppress. The parties agree that that evidence was
found during execution of the “photographs” and “videos”
search commands. As such, although defendant challenges
the specificity of all the search commands (with the possible
exception of the text message and Instagram commands),
the only commands actually at issue on appeal are the “photographs” and “videos” commands, so we limit our discussion to them.3
          With those preliminary issues resolved, we turn
to the main issue, which is whether the warrant was sufficiently specific. For searches of electronic devices, a warrant
is specific enough to satisfy the particularity requirement if
it “describe[s], with as much specificity as reasonably possible under the circumstances, what investigating officers
believe will be found” on the device, including, “if available
and relevant, the time period during which the information
was created, accessed, or otherwise used.” Mansor, 

 (emphasis in original). “[T]he essential ‘thing’
about which a warrant must be particular is the probative
information, not types of files or their location within the
computer’s file-management system[.]” State v. Savath, 298
     3
       Because the only evidence subject to suppression was found during execution of the “photographs” and “videos” search commands, we also need not consider (and no one has raised) the issue of severability. See State v. Turay, 

, 

, rev allowed, 

 (2021) (regarding the possibility of severing invalid commands from an otherwise valid warrant).
682                                                            State v. Vesa

Or App 495, 500, 

, rev den, 

 (2019). In
other words, the “ ‘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 electronic device.
Mansor, 

 (emphasis in original).
         In this case, we agree with defendant that the warrant was not specific enough as to what information the
officers executing the warrant were supposed to look for in
the “photographs” and “videos” on defendant’s cellphone.
In reaching that conclusion, we reject the state’s argument
that the affidavit implicitly limits the search commands
for “photographs” and “videos” to photographs and videos
containing or constituting “communications” relevant to
the alleged crimes against E. That argument is inconsistent with the prosecutor’s arguments in the trial court and
essentially amounts to an alternative basis to affirm that
was not raised below. Even assuming that the argument is
properly made for the first time on appeal,4 we are unpersuaded that the affidavit gives rise to the “communications”
limitation argued by the state.
         Where an affidavit is considered part of the warrant, as here, we must read the warrant’s search commands
“in conjunction with and limited by the descriptions in the
affidavit.” State v. Turay, 

, 

,
rev allowed, 

 (2021). That is because “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.” 

 (footnote omitted). For example, in Mansor,
the police were investigating fatal injuries that an infant
sustained while in his father’s care, and they obtained a
warrant to search the father’s computers. 

.
The warrant itself did not contain any instructions or limitations on what to search for, but the incorporated affidavit

    4
      The requirements for us to consider an alternative basis to affirm that were
not argued to the trial court are discussed in Outdoor Media Dimensions Inc.
v. State of Oregon, 

, 

 (2001), and include that the
record must be materially the same as would have developed had it been raised.
Defendant contends that the Outdoor Media requirements are not met, but neither party has significantly briefed the issue, and our disposition obviates the
need to settle that threshold disagreement.
Cite as 

 (2023)                             683

described the father’s statements to police that, just before
calling 9-1-1 on June 12, he used his computer to search the
internet for first-aid advice. Id. at 204. The court concluded
that the affidavit “described the ‘what’ to be searched for
and the relevant time frame: [t]he June 12 internet search
history,” which made the warrant sufficiently specific. Id. at
219.
         Like defendant, we agree with the state that the
warrant to search defendant’s cellphone must be read in
conjunction with Turpin’s affidavit—there is no room for
debate on that point—but we disagree with the state as to
the effect of doing so.
         We first consider the warrant itself. The warrant
commands officers to search defendant’s cellphone for a long
list of “electronic aspects and their associated history”—
specifically, photographs, videos, text messages (SMS and
MMS), Facebook Messenger, Snapchat, Twitter, Instagram,
any other installed messaging applications, email, voice messages, voicemail messages, call logs, contact lists, and cloud
storage—for the period of November 15, 2018 to November 23,
2018. The warrant does not identify the crimes under investigation, nor does it contain any description of the alleged
incident with E. On its face, the warrant lacks the specificity required by Article I, section 9. See Savath, 

 (explaining that “details regarding specific ‘locations’
within the phone do little if anything to satisfy the particularity requirement,” because it “says almost nothing about
the information [officers] may seek”).
          We next consider whether the attached affidavit
provided the necessary specificity. In the affidavit, Turpin
requests a warrant to search the same data categories
listed in the warrant—photographs, videos, text messages
(SMS and MMS), Facebook Messenger, Snapchat, Twitter,
Instagram, any other installed messaging applications,
email, voice messages, voicemail messages, call logs, contact lists, and cloud storage—for the period of November 15,
2018 to November 23, 2018. Unlike the warrant, the affidavit
identifies the crimes for which Turpin believed that evidence
would be found on defendant’s cellphone: first-degree robbery, second-degree kidnapping, unlawful use of a weapon,
684                                              State v. Vesa

coercion, and menacing. The affidavit also describes the
alleged incident with E, including that defendant and E had
sent text messages and Instagram messages to each other
from November 15 to 17, and that E saw defendant using
his cellphone during the November 17 incident and believed
that he might have sent text messages.
         The affidavit attached to the warrant thus clarifies
what evidence Turpin believed would be found in a search
of the text messaging and Instagram data on defendant’s
cellphone: text messages and Instagram messages with
E between November 15 and 17, and text messages sent
during the November 17 incident. By contrast, the affidavit is completely silent as to what evidence Turpin believed
would be found in defendant’s photographs, videos, Facebook
Messenger, Snapchat, Twitter, other installed messaging
applications, email, voice messages, voicemail messages,
call logs, contact lists, and cloud storage.
         The state argues on appeal that the affidavit implicitly limits the search commands for all data types listed in
the warrant and affidavit to evidence of “communications.”
The state reasons that the listed data types are “largely
related to communications” and that the only two types of
data specifically mentioned in relation to the incident with
E—text messages and Instagram messages—are types of
communications data. In the state’s view, a reasonable officer reading the warrant and affidavit together would understand that defendant’s phone was to be searched for “communications” between defendant and E from November 15 to
17, or between defendant and someone else on November 17,
including communications-related photographs and videos,
such as one might send or receive in an MMS text message
(because MMS allows for photographs and videos to be
included in text messages) or through Instagram (an application that allows sharing of photographs and videos).
         We disagree that Turpin’s affidavit implicitly limited
the warrant’s search commands in the manner argued by
the state. A warrant to search a digital device must describe
with specificity the information related to the alleged criminal conduct which there is probable cause to believe will be
found on the electronic device. Mansor, 

. Here,
Cite as 

 (2023)                                              685

the affidavit connects the search of defendant’s text messages and Instagram messages with the specific facts of the
November 17 incident and the circumstances leading up to
it, and, as the state points out, it actually narrows the relevant date range for those data types to November 15 to 17.
But the affidavit does not connect the search of numerous
other data types with any facts specific to the November 17
incident or the circumstances leading up to it. We consider it
highly unlikely that an officer executing the warrant would
understand from the affidavit that the officer was meant to
search only for “communications” in the photographs and
videos (and other listed data) on defendant’s cellphone, particularly when nothing in the affidavit suggests that defendant used any of those data types in connection with the
November 17 incident.
         The training-and-experience portion of the affidavit does not alter that conclusion. Turpin averred that
cellphones are capable of storing the various types of data
listed in the affidavit, that such data “can be important in a
criminal investigation,” that MMS text messages are capable of containing photographs and videos, and that data
embedded in photographs “can be very useful to investigators.” Such averments, although true, were unrelated to
the facts of this particular investigation, and they did not
impose any clarifying limitation on what was to be searched
for on defendant’s cellphone. See Cannon, 

(“Statements in the affidavit that are derived from an officer’s training and experience may … be considered” when
assessing the adequacy of a supporting affidavit’s facts to
establish probable cause, but “the officer’s knowledge must
be connected to the facts of a particular case.”).
         Having concluded that the warrant authorized the
police to search defendant’s cellphone for photographs and
videos generally, not only those containing or constituting
“communications,” we readily conclude that the warrant
lacked the required specificity under Article I, section 9, as
to what officers were supposed to search for in defendant’s
photographs and videos.5
    5
      We express no opinion as to what our disposition would be if we agreed
with the state that the affidavit imported a “communications” limitation onto all
686                                                            State v. Vesa

         In Turay, we held that a warrant’s search command
for “[a]ny evidence regarding the locations, including geolocation information, of [several] phones” over a three-month
period was not specific enough, because there was nothing
to guide the officers executing the warrant as to “what geolocation data would be evidence of any criminal activity.” 

. A command to search for any photographs
of the defendant and two named witnesses that showed “an
association with prostitution including any profiting from
prostitution” also was not specific enough, because it provided “little, if any guidance as to what reasonably could
be expected to be found on the phone.” 

. However,
a search command for photographs, videos, and other data
depicting specific people engaged in specified activities
(“sexually explicit positions or conduct that relate to internet postings or advertisements”) was specific enough. 

; see also Paye, 

 (holding that a warrant was sufficiently particular, even though it authorized a
broad search of the defendant’s computer for any evidence of
the crimes of promoting or compelling prostitution, including
listing numerous data types, because the attached affidavit
contained witness statements about the defendant’s specific
prostitution-related activities and his use of his computer in
those activities, such that it was apparent that the evidence
expected to be found on the computer consisted of “images
and videos of women he prostituted, contact information
for people connected with the crimes, and communications
about the crimes”).
         The search commands for “photographs” and “videos” on defendant’s cellphone are similar to the general
search commands deemed insufficiently specific in Turay.
It is true, as the state emphasizes, that the warrant in this
case included a nine-day time limitation—allowing a search
of photographs and videos created, modified, or deleted
between November 15, 2018 and November 23, 2018—and
temporal limitations do help identify “with greater specificity the ‘what’ that is being searched for.” Mansor, 363 Or at

of the warrant’s search commands, except to note that it would not necessarily
make the warrant specific enough. See Savath, 

 (“file types
and categories of communications data that might be found within the phone …
do little if anything to satisfy the particularity requirement” (emphasis added)).
Cite as 

 (2023)                                               687

218. But we are unpersuaded that the nine-day temporal
limitation in the warrant alone made the search commands
for photographs and videos on defendant’s cellphone specific
enough to meet the particularity requirement in Article I,
section 9.
         Without the necessary specificity, the first warrant
amounted to a general warrant to search any and all photographs and videos on defendant’s cellphone—albeit only for
a nine-day period—and allowed the officers executing the
warrant to decide for themselves what constituted evidence
of the crimes allegedly committed against E on November 17.
“Both we and the Supreme Court have explained that a
warrant authorizing a search for all ‘evidence of a particular crime’ is not sufficiently specific to pass constitutional
muster.” State v. Bock (A169480), 

, 

 (2021). That is in part because “[a] warrant without clear limitations on the material subject to search and
seizure [improperly] requires the executing officer to employ
discretion in deciding what to search or seize.” 

.
         In sum, we agree with defendant that the warrant
issued on December 17, 2018, lacked the specificity required
under Article I, section 9, and was therefore invalid. It follows that the second warrant, issued on February 13, 2019,
was also invalid.6 The trial court erred in denying defendant’s motion to suppress the photographs and videos of C
found on defendant’s cellphone during the execution of those
warrants. That evidence was relevant to defendant’s convictions in Case No. 19CR17823, so we reverse and remand in
that case. Defendant was sentenced together in both cases,
so we remand for resentencing in Case No. 18CR78326.
        In Case No. 19CR17823, reversed and remanded. In
Case No. 18CR78326, remanded for resentencing; otherwise
affirmed.


    6
      As previously noted, the state does not dispute that if the first warrant is
invalid, then so is the second. See State v. Johnson, 

, 

 (2003) (where officers use unlawfully obtained information to secure a warrant, evidence found in the warranted search must be suppressed, unless the
state shows that the evidence would have inevitably been discovered or otherwise
was not tainted by the illegality).