296
On respondent’s petition for reconsideration filed March 17, and appellant’s
response filed March 23; reconsideration allowed, opinion (
324 Or App 453,
527
P3d 54) modified, adhered to as modified April 19, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
JORGE ULISES SERRANO,
Defendant-Appellant.
Marion County Circuit Court
19CR02471; A173250
528 P3d 1219
In a petition for reconsideration, the state requests clarification of our opinion in State v. Serrano (A173250), 324 Or App 453,
527 P3d 54 (2023), as to the
harmless error analysis and as to whether the opinion disposes of defendant’s second assignment of error, which challenged the trial court’s denial of defendant’s
motion in limine to exclude nonresponsive material discovered on defendant’s cell
phone. Held: On reconsideration, the court clarified that its discussion of the first
and second assignments of error relates to the trial court’s rulings on both the
motion to suppress and the motion in limine. The court further amended the
opinion to clarify that the court’s conclusion that the error in denying the motion
to suppress was not harmless is not based on charges having been brought. The
court amended the opinion, see
id. at 467 to delete “the charges in this case stem
from the investigation triggered by discovery of the nonresponsive material on
defendant’s cell phone, and” from the final sentence of the paragraph. As modified, the sentence now reads: “The denial of the motion to suppress therefore was
not harmless, because highly probative evidence used to prove the state’s case
came from the nonresponsive material discovered on defendant’s cell phone.”
Reconsideration allowed; opinion modified; adhered to as modified.
Thomas M. Hart, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara A. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Lagesen, Chief
Judge, and Aoyagi, Judge.
TOOKEY, P. J.
Reconsideration allowed; opinion modified; adhered to as
modified.
Cite as 325 Or App 296 (2023) 297
TOOKEY, P. J.
In a petition for reconsideration, the state requests
clarification of our opinion in State v. Serrano (A173250), 324
Or App 453,
527 P3d 54 (2023), as to whether the opinion
disposes of defendant’s second assignment of error, which
challenged the trial court’s denial of defendant’s motion
in limine to exclude nonresponsive material discovered on
defendant’s cell phone. We allow reconsideration to clarify
that our discussion of the first and second assignments of
error, see
id. at 457-58, although explained in terms of the
motion to suppress, also relates to the trial court’s ruling on
the motion in limine, and that the trial court erred in denying defendant’s motion in limine.
We also clarify that our decision relating to the trial
court’s rulings is limited by defendant’s motion in limine and
motion to suppress, which sought to exclude evidence discovered during the two warranted searches of defendant’s cell
phone. If, and to the extent defendant seeks suppression of
additional evidence based on the principles articulated in
the opinion, that would require a new motion to suppress.
Finally, we amend the opinion to clarify that our
conclusion that the error in denying the motion to suppress
was not harmless is not based on charges having been
brought. Thus, see id. at 467, we delete “the charges in this
case stem from the investigation triggered by discovery of
the nonresponsive material on defendant’s cell phone, and”
from the final sentence of the paragraph. As modified, the
sentence now reads:
“The denial of the motion to suppress therefore was not
harmless, because highly probative evidence used to prove
the state’s case came from the nonresponsive material discovered on defendant’s cell phone.”
Reconsideration allowed; opinion modified; adhered
to as modified.
