State v. James

No. 799             November 6, 2024                   55

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Appellant,
                            v.
                   DAVID JAMES,
                Defendant-Respondent.
            Washington County Circuit Court
                 C150903CR; A179554

  Janelle F. Wipper, Judge.
  Argued and submitted May 31, 2024.
   Philip Thoennes, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for respondent. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
  Before Joyce, Presiding Judge, Lagesen, Chief Judge, and
Armstrong, Senior Judge.
  JOYCE, P. J.
  Reversed and remanded.
56   State v. James
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        JOYCE, P. J.
         The state appeals from a pretrial order granting
defendant’s motions to suppress evidence that police
obtained pursuant to warrants issued in 2015 and 2021. As
explained below, we conclude that the trial court properly
suppressed some of the evidence and erred in suppressing
other evidence. Further, because we conclude that parts of
the 2015 warrant were invalid, we remand to the trial court
to apply the framework established in State v. Turay, 

, 

 (2023), to determine whether a minimal factual nexus exists between the invalid parts of the warrant
and the challenged evidence and if so, whether the state can
establish that that evidence was untainted by the invalid
parts of the warrant.
         We provide a brief overview of the facts and procedural history, reserving a more detailed description about
the warrants at issue (and their execution) for the discussion below. In 2015, police began investigating defendant for
sexually abusing V and her older sister, M. Police obtained
a warrant to search defendant’s residence for various items,
including computers, electronic storage devices, and digital
cameras. The warrant also authorized police to search the
digital devices.
         Although the search did not reveal any direct evidence of abuse, as explained further below, police found
a potentially incriminating note from M to defendant, as
well as other evidence that tended to corroborate witness
testimony. The state charged defendant with five counts of
first-degree sexual abuse, two counts of first-degree sodomy,
one count of using a child in a display of sexually explicit
conduct, and one count of first-degree unlawful sexual penetration. The case went to trial, the state introduced, among
other evidence, some of the items found pursuant to the warrant, and a jury found defendant guilty. In a prior appeal,
we reversed and remanded on grounds not relevant to this
appeal. State v. James, 

, 

 (2020).
       In 2021, in light of the heightened particularity
requirement announced in State v. Mansor, 

,

 (2018), police obtained a second warrant that
58                                                          State v. James

authorized them to search the digital devices that the state
still had in its possession after police seized them pursuant
to the 2015 warrant.
         Defendant filed motions to suppress all evidence
obtained pursuant to both the 2015 and 2021 warrants. The
trial court agreed with defendant’s arguments and granted
the motions to suppress, a ruling we describe in greater
detail below. The state appeals, assigning error to the trial
court’s rulings. We review a challenge to the validity of a
search warrant for legal error, State v. Cannon, 

, 

 (2019), and we reverse in part and
remand.
         We turn to a more detailed recitation of the warrants and their execution. In doing so, we state the uncontroverted facts as recited in the affidavit supporting the
request for the search warrant.1 State v. Burnham, 

, 

 (2017), adh’d to as modified
on recons, 

, 

 (2018). In 2015,
Detective Herring applied for a search warrant to search
defendant’s residence and “seize, photograph and have scientifically examined” various items, including:
        “Computers and electronic storage devices which were
     widely commercially available and more likely than not
     used during the time period of approximately early 1990s
     to mid-2000’s to include optical media, hard drive or removable storage devices.
        “Black and/or grey video camera recorder with flip
     viewer which [was] widely commercially available and
     more likely than not used during the time period of approximately early 1990s to mid-2000’s to include optical media,
     hard drive or removable storage devices.”
The affidavit also sought authorization to “photograph the
interior of the residence documenting the layout of the residence and where items are located.”
        Herring averred that, when V was 15 years old, she
disclosed that defendant had digitally penetrated and orally
sodomized her multiple times when she was approximately
    1
      We primarily focus our description of the facts and analysis on the 2015
warrant because our conclusions with respect to that warrant are ultimately dispositive as to the arguments raised concerning the 2021 warrant.
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three to six years old (between 2002 and 2005). V’s parents
also recalled a time when V’s older sister, M, told them that
defendant had touched her vagina when M was approximately four years old (in 1998). V stated that the abuse
occurred at defendant’s house, mainly on his bed in his bedroom and once in his attic.
        Herring further explained that V stated that sometimes defendant filmed the abuse with a video camera that
was “grey in color with a viewing screen that flips out on the
side with a black strap.” M and her brother, D, also recalled
seeing a video camera matching that description in defendant’s house. V’s mother described defendant as being “very
tech savvy” with “a very elaborate computer room” in his
house. D recalled seeing three monitors and two computer
towers in defendant’s computer room.
         Herring also provided detail about statements that
defendant made. Defendant said that V, M, and D would
often spend time at his house watching movies and reading books with defendant. Defendant stated that at times he
was alone with each child in his house. He also said that he
took digital photographs of the children. Defendant stated
that he used to own a “handheld black with grey” video camera but that he got rid of it, and he did not remember if he
had ever used the video camera to record the children.
          Defendant explained that he “always uploads his
camera to his computer, every time,” that he uses CDs and
DVDs to back everything up, and that “he backs up his computer and photos quite regularly.” He also said that “he has
a lot of back[ ] ups from those days [and] … has kept quite
a bit of the early stuff.”
          Herring also included a summary of her training
and experience, including her experience investigating sex
crimes and computer-facilitated crimes against children and
adults. Herring stated that, based on her training and experience, “somebody who collects images of child pornography
is likely to store them on his computer,” and “people who produce, trade, distribute, or possess images of minors engaged
in sexually explicit conduct … rarely, if ever, dispose of sexually explicit images of minors [and] [t]hey store such images
60                                            State v. James

in many different formats, including … many forms of digital media such as hard drives, diskettes, CD-ROMs and
other storage media.” Herring averred that “based on conversations with Detective Michael Hanada … these child
porn images can be stored on the computer’s storage devices.
Detective Hanada told me he can identify electronic devices
and the approximate years of the manufacturer for purposes
of seizing the correct items in this search warrant.” A magistrate signed the warrant and police executed it.
         Upon executing the warrant, police seized, among
other items, a Seagate hard drive, a CD labeled “CASIO
PHOTO BACKUP 7-7-02,” and a Sony digital video camera.
Police also seized a drawing of a mermaid signed by M and
dated 2002, when M would have been eight years old, that
said, “Dave, tell the troth, is it bad when I come here. anser
soon.” Police also photographed the interior of defendant’s
house and the locations where police had found the seized
items. Forensic analysts attempted to search the Seagate
hard drive but could not access it because it was heavily
encrypted. On the CD, police located nonsexual photographs
of V, M, and their brother, D.
        Police obtained the second warrant in 2021. That
warrant authorized them to search the digital devices that
the state still had in its possession after police seized them
pursuant to the 2015 warrant. The 2021 search of those
devices yielded the same results as the 2015 search.
         As noted above, defendant filed motions to suppress evidence obtained pursuant to both the 2015 and 2021
search warrants. Defendant argued that the 2015 warrant’s command to search the devices lacked particularity
under Mansor. See 

 (a warrant authorizing
the search of digital devices “must identify, as specifically
as reasonably possible in the circumstances, the information to be searched for”). Defendant also argued that the
hard drive and CD were not lawfully seized because the
warrant was overbroad, the Sony digital video camera fell
outside the scope of the warrant, and the drawing was not
lawfully seized under the plain-view exception to the warrant requirement. Defendant did not specifically address
the photos of the interior of his house but argued generally
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that the warrant did not establish probable cause. He also
argued that the 2021 search warrant was invalid because
it could not authorize a search of items unlawfully seized
under the 2015 warrant.
         The state conceded that the 2015 command to
search the digital devices was insufficiently particular, but
it argued that the 2015 warrant established probable cause
to seize the hard drive and CD and to photograph defendant’s house. The state also argued that the Sony digital
video camera fell within the scope of the warrant and that
officers lawfully seized the drawing under the plain-view
doctrine. Alternatively, the state argued that officers lawfully seized the hard drive, CD, and video camera under a
plain-view theory. The state further argued that, because
the 2015 seizure of devices was lawful, the 2021 search warrant was also lawful.
         The trial court granted defendant’s motions. It
accepted the state’s concession that the 2015 searches of the
devices were invalid. As to the seizures of the devices that
the state argued were valid under the 2015 warrant, it ruled
that the 2015 warrant “did not establish probable cause that
evidence of a crime would be found on any particular device
or the devices collectively,” that “[i]tems seized pursuant to
the warrant were nonresponsive,” and that “[t]he evidence
seized in this case does not fall under the plain view exception” because the incriminating character of the evidence is
not immediately apparent. The court further concluded that
because the 2015 warrant was invalid, so too was the 2021
warrant.
      With the facts so framed, we turn to the state’s
arguments on appeal.
         Seizure of the hard drive and CD. As it did below,
on appeal the state concedes that the 2015 command to
“scientifically examine” (i.e., to search) the digital devices
was insufficiently particular under Mansor. We accept that
concession. But the state nevertheless challenges the trial
court’s conclusion that the 2015 seizure of those items was
unlawful. The state argues that the facts in the affidavit,
combined with Herring’s training and experience, were
62                                                 State v. James

sufficient to establish probable cause to believe that evidence associated with the crimes of sexual abuse, sodomy,
and using a child in a display of sexually explicit conduct
would be found in defendant’s house and that such evidence
could be found on “any digital medium capable of storing
photos and videos, including CDs, DVDs, or hard drives.”
Defendant renews his argument that the 2015 search warrant was overbroad because the affidavit did not provide
probable cause to seize every digital device as outlined in
the warrant.
          Defendant’s overbreadth argument relies on Cannon,
where we held that, when a search warrant authorizes the
seizure and search of multiple devices, the supporting affidavit must supply probable cause “for each device that a warrant authorizes to be searched.” 

. There,
police obtained a warrant to search the defendant’s car and
to seize, and forensically analyze, “ ‘any’ cell phones …, ‘all’
computers, including laptops, tablets, iPads, or iPods, and
… ‘any and all’ hard drives, gaming systems, flash drives,
thumb drives, USB drives, SD cards, micro SD cards, CDs,
DVDs, or any other similar devices ….” 

. The
affidavit averred that employees at a pawn shop discovered
“lewd” images of children on a laptop that the defendant
had purchased from the shop, retained for about two weeks,
and then sold back to the shop. 

 About one week before
the images were discovered on the laptop, police responded
to a call that the defendant was impersonating a Walmart
employee and taking pictures of children in the store, possibly with a cell phone. 

. The defendant had
convictions for prior sexual offenses, and his parole officer
had recently arrested him for violating a condition of parole
that forbade him from possessing electronic devices capable of connecting to the internet. 

. The defendant
confessed to his parole officer that he had a Samsung smart
phone in his car. 

 The affidavit also included a “lengthy
description of habits and behaviors that, in [the officer’s]
training and experience, are commonly associated with
individuals who possess child pornography.” 

        Police executed the warrant, searched the defendant’s
car, and seized two cell phones, a laptop, and a gaming
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device. Id. at 621. Police searched the devices and found
pornographic images of children on one of the phones. Id.
The defendant moved to suppress the evidence, arguing that
the warrant was overbroad, and the trial court granted the
motion. Id. at 622. The state appealed, and we affirmed,
holding that “probable cause must exist for each device that
a warrant authorizes to be searched.” Id. at 629.
         In reaching that conclusion, we emphasized that the
standard of probable cause requires not just a mere possibility that evidence would be found in a place to be searched,
rather it demands that it is “more likely than not.” Id. at 627;
see also Burnham, 

 (warrant was overbroad
where, at best, the affidavit established a possibility that
photos had been transmitted from the defendant’s phone to
other devices, but that possibility did not rise to the level
of probable cause to search each of the devices authorized
by the warrant). Under that standard, the warrant permitted a search broader than was supported by probable cause
“because the affidavit did not provide a factual basis from
which a reasonable magistrate could conclude that it was
probable that evidence would be found on every CD, DVD,
gaming system, thumb drive, micro-SD card, and other similar device owned or possessed by defendant.” Cannon, 

.
         In certain respects, this case is distinguishable from
Cannon. First, unlike the warrant in Cannon, which authorized police to seize a broad array of digital devices—cell
phones, computers, tablets, thumb drives, CDs, DVDs, and
gaming devices—the warrant here was somewhat narrower
because it was limited to computers and electronic storage
devices. Further, the warrant here included a temporal
limitation and authorized the seizure only of those devices
that were widely available and likely to be used between the
early 1990s and mid-2000s.
         Second, unlike in Cannon, where the only information in the affidavit about the defendant’s use of devices was
the defendant’s connection to a laptop that contained “lewd
images” and his use of a cell phone to take pictures of children at Walmart, the affidavit here contained defendant’s
64                                             State v. James

own statements about regularly uploading his camera to his
computer and backing everything up onto CDs and DVDs.
         Those differences from Cannon, however, do not
compel a conclusion that the warrant and affidavit established probable cause for every computer and electronic storage device used during the 15-year timeframe. As the state
notes, however, “in some cases, the information in an affidavit may give rise to probable cause to search a defined
group of electronic devices, each of which may contain the
evidence or contraband that is the subject of the search.”

 at 631 n 4; see also State v. Villagran, 

,

 (1983) (“The nature of ‘probable cause’ is not
such that if it is used to support a search at one location it
is necessarily exhausted as to other potential search sites.
Indeed, the circumstances of a case may give rise to probable cause to search several different locations at the same
time, particularly where, as here, the evidence sought may
be at once in more than one location.”). The question, then, is
whether “computers and electronic storage devices,” as enumerated in the warrant, constitute a “defined group of electronic devices” for which the affidavit established probable
cause, or whether the warrant was overbroad.
          In our view, the warrant’s command to seize computers and electronic storage devices, including “optical
media, hard drive[s] or removable storage devices” that
were “widely commercially available and more likely than
not used [between the] early 1990s to mid-2000’s,” was overbroad. The affidavit included the following information: V’s
and M’s disclosures that defendant sexually abused them
between approximately 1998 and 2005; V’s statement that
defendant recorded the abuse on a digital camera; defendant’s statements about uploading his camera to his computer and backing data up onto CDs and DVDs (optical
media); and Herring’s averments about her training and
experience, including that people who possess child pornography “rarely, if ever, dispose of sexually explicit images of
minors.” See State v. Daniels, 

, 

, rev den, 

 (2010) (determinations of probable
cause involve the totality of the circumstances, including an
officer’s training and experience). Based on that information,
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the affidavit established probable cause that evidence would
be found on computers, hard drives that defendant uploaded
information from his camera to, and CDs or DVDs—and
only those devices that defendant possessed between 1998
and 2005.
         The warrant, however, authorized police to seize
devices dating back to the “early 1990s.” Further, the warrant authorized police to seize not just computers, hard
drives, and CDs and DVDs, but also “removable storage
devices,” which would include devices such as USB “thumb”
drives. Moreover, the warrant did not provide any details
about the types or number of computers and hard drives
that defendant owned and that he would have uploaded his
camera to. Cf. Mansor, 

 (warrant was valid
with respect to the seizure of computers where the warrant
established the grounds for believing that evidence was
likely to be found on one or more of them, and the warrant
identified two laptop computers and two desktop computer
towers); see Cannon, 

 (warrant was overbroad in part because “the affidavit failed to establish that
defendant even owned any of the devices indicated in the
warrant, other than the single Samsung cell phone”).
         Thus, although the facts of this case are distinguishable to an extent from Cannon, the warrant’s authorization to seize a broad group of computers and electronic
storage devices—including “removable storage devices” and
devices used by defendant outside of the timeframe of the
alleged abuse—lacked details such that it was not sufficiently “defined,” and included items for which the affidavit did not establish probable cause. Particularly given the
expansive privacy interests that are implicated by the search
and seizure of digital devices, we conclude that the search
category was overbroad. See Mansor, 

 (The
large storage capacity of digital devices can “convey far more
than previously possible. The sum of an individual’s private
life can be reconstructed through a thousand photographs
labeled with dates, locations, and descriptions.” (Internal
quotation marks and citation omitted.)). Accordingly, the
trial court did not err in suppressing the hard drive and CD
labeled “CASIO PHOTO BACKUP 7-7-02.”
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          The state argues in the alternative that the police
lawfully seized the hard drive and CD under the plain-view
exception to the warrant requirement. “A warrantless search
is lawful only if it falls within one of the few specifically
established and well-delineated exceptions to the warrant
requirement.” State v. Currin, 

, 

 (2013) (citation and internal quotation marks omitted).
“The state bears the burden of proving that an exception
to the warrant requirement existed.” State v. Carter, 

, 

 (2005), aff’d, 

, 

 (2006) (citation omitted). The plain-view exception
“authorizes seizure of evidence under circumstances where
the police are in a place where they are entitled to be when
they observe the evidence in plain view and the incriminating character of the evidence is ‘immediately apparent.’ ”

 (citation omitted). Framed slightly differently, the items
seized under the plain-view exception must be “obvious evidence of crime,” State v. Sagner, 

, 

, rev den (1973).
         In the state’s view, the warrant authorized the
police to search defendant’s residence for evidence and
“[o]nce inside the house, the police had probable cause to
believe that the [hard drive and CD] were subject to seizure.” The trial court concluded that “[t]he evidence seized
in this case does not fall under the plain view exception”
because “[t]he incriminating character of the evidence [was
not] ‘immediately apparent.’ ”
         We agree with the trial court. Nothing about the
hard drive or CD themselves immediately announced that
those particular items were incriminating. Cf. State v.
Ready, 

, 

, rev den, 

(1997) (videotape labeled “kid porn” announced its contents
as contraband and was thus lawfully seized under plain-view exception). Nor were officers entitled to seize the items
“to simply determine if [they were] evidence or contraband.”
State v. Hoggans, 

, 

 (1978).
Thus, the hard drive and CD were not lawfully seized under
the plain-view exception.
         Seizure of the Sony digital video camera. Pursuant
to the 2015 search warrant command to seize a “[b]lack and/
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or grey video camera recorder with flip viewer which [was]
widely commercially available and more likely than not used
during the time period of approximately early 1990s to mid-
2000’s,” police seized a black and grey Sony digital video
camera. At the hearing on the motion, defendant argued
that the seizure of the camera was outside the scope of the
warrant after presenting evidence that the video camera
was not released in the United States until 2009. The state
presented evidence that, although that model of camera was
not released in the United States until 2009, it was released
outside the United States and at least one such camera was
available to purchase on Amazon in 2005. Defendant then
argued that, even if the camera was available to purchase
on Amazon in 2005, that does not mean that it was “widely
commercially available and more likely than not used during
the time period of approximately early 1990s to mid-2000’s.”
         The trial court did not explicitly address the Sony
video camera in its order granting defendant’s motion to
suppress but it did find that “[i]tems seized pursuant to the
warrant were nonresponsive.” In light of the evidence and
argument presented at the hearing, we presume that the
trial court found that the camera was not “widely commercially available.” See Ball v. Gladden, 

, 

 (1968) (holding that if findings are not made on all
issues, and there is evidence from which such facts could
be decided in more than one way, we will presume that the
facts were decided in a manner consistent with the trial
court’s order). Given the evidence in the record, we conclude
that the trial court was not required, as a matter of law, to
find that the camera was “widely commercially available.”
See 

 (explaining that we are bound by the trial court’s
factual findings if there is any evidence in the record to support them). Thus, the trial court did not err in ruling that
the video camera fell outside the scope of the warrant.
         In the alternative, the state argues, as it did below,
that police lawfully seized the video camera under the
plain-view exception. The trial court ruled that the video
camera was not lawfully seized under the plain-view exception because the incriminating character of the camera
was not immediately apparent. The state contends that the
68                                                             State v. James

incriminating nature of the camera was immediately apparent because it matched the description V gave of the camera.
Defendant argues that the incriminating nature of the video
camera was not immediately apparent because the video
camera by itself is not incriminating, rather it is only the
data contained on the camera that would be incriminating.
          We agree with the state that the camera by itself
is incriminating.2 Whether officers lawfully seized an item
under the plain-view doctrine requires us to determine
whether the seizure was supported by probable cause. State
v. Wise-Welsh, 

, 

, rev den,

 (2022) (stating so); see also Texas v. Brown, 

, 

, 

 (1983) (equating the “immediately apparent” standard required for plain
view with probable cause for Fourth Amendment purposes).
In making that determination, we evaluate whether an
officer’s subjective belief that an item is more likely than
not contraband or evidence of a crime is objectively reasonable. Wise-Welsh, 

. Here, the video camera matched the description given by V, and it would thus
corroborate V’s statements about defendant using a video
camera to record some of the abuse. Thus, it was objectively
reasonable for officers to believe that the video camera was
evidence of the crime. Accordingly, we conclude that the
police lawfully seized the video camera under the plain-view
exception to the warrant requirement.3
          Seizure of the mermaid drawing. Police seized the
mermaid drawing under the plain-view exception to the
warrant requirement. The trial court ruled that the plain-view exception did not apply because the incriminating
nature of the drawing was not “immediately apparent.”
    2
      As noted above, the plain-view exception requires that officers be “in a place
where they are entitled to be” when they observe the evidence. Carter, 

. Although we have concluded that some of the commands in the warrant
were invalid, the invalid search commands in the warrant do not necessarily
invalidate the warrant in toto. See Turay, 

 (stating so). Unless
the trial court on remand determines that the invalid portions of the warrant
invalidated it in its entirety, the warrant authorized police to search defendant’s
house for the camera (a point that below, defendant did not contest).
    3
      That the trial court found that the camera fell outside the scope of the warrant because it was not “widely commercially available” does not preclude us from
concluding that officers had probable cause to seize the camera under the plain-view exception.
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         The state argues, as it did below, that the message on
the drawing, “Dave, tell the troth. Is it bad when I come here.
anser soon,” indicates that M “was questioning whether it was
right or wrong for her to spend time at defendant’s house.”
Thus, in the state’s view, the incriminating nature of the
drawing was apparent. Defendant contends that the message
on the drawing is “open to many interpretations,” and thus its
incriminating character was not immediately apparent.
         We agree with the state. Although the drawing is
open to interpretation, it was objectively reasonable for officers to believe that the drawing was evidence of the crime
because it indicated that M was troubled by what was happening at defendant’s house and thus the drawing tended
to make a material fact—whether defendant abused her—
more or less probable. OEC 401 (“ ‘Relevant evidence’ means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.”); ORS 133.535(1) (“Evidence of or information
concerning the commission of a criminal offense” is subject
to search and seizure.).
         Photographs of defendant’s house. Pursuant to the
warrant’s command to “photograph the interior of the residence documenting the layout of the residence and where
items are located,” police took photographs of defendant’s
house and locations where they found seized items. The
state argues that the affidavit established probable cause
to photograph the interior of defendant’s house because the
photographs would “tend to corroborate the descriptions provided by [V, M, and D].” Defendant argues that that search
command was not supported by probable cause because, in
defendant’s view, the fact that the children regularly spent
time at defendant’s house is not in dispute, and thus “the
fact that the children can describe the interior of the house
in no way increases the likelihood that defendant engaged
in any criminal activity.” The trial court did not explicitly
address the photographs in its ruling granting defendant’s
motion to suppress.
        In our view, the proper inquiry is not whether the
warrant established probable cause to photograph defendant’s
70                                                         State v. James

house, but whether the warrant lawfully authorized police
to search defendant’s house. In a lawfully authorized search,
documenting that search through photographs that are
limited to the same vantage points as the search is not an
independent “search” that requires an independent determination of probable cause. Further, it is consistent with
best practices that police be required to contemporaneously
document evidence and the collection of evidence through
methods such as written reports and photographs. See,
e.g., Principles of the Law, Policing; Documenting Evidence
§ 8.02, at commentary (Am. Law Inst., Tentative Draft No. 3,
April 6, 2021, approved June 2021) (police “cannot fulfill
their commitment to reliability in investigations without
documenting the collection of evidence …. Human memory
is fallible …. Therefore evidence should be documented as
contemporaneously as is possible … in writing and through
photographs”). Here, the warrant lawfully authorized police
to search defendant’s house, and thus police were also authorized to photograph the interior parts of defendant’s house
that were searched and the locations where evidence was
found.4
         In sum, the trial court did not err in suppressing
the hard drive and CD because the 2015 command to seize
computers and electronic storage devices was overbroad.
Consequently, the trial court also did not err in concluding
that the 2021 search warrant was unlawful because, but for
the unlawful 2015 seizure of the hard drive and CD, those
items would not have been in the state’s possession and subject to the 2021 warrant. See State v. Johnson, 

,

 (2003) (the state must show that, if evidence
seized pursuant to a warrant is connected to some prior governmental misconduct, the warranted seizure is not tainted
by that misconduct).5 We further conclude that police lawfully seized the Sony video camera and mermaid drawing
under the plain-view exception; and that the 2015 warrant

    4
      As noted above, although the warrant included some unlawful portions, the
command to seize the video camera was presumably valid such that the warrant
authorized police to search defendant’s house. See 

 n 2.
    5
      The state did not argue below or on appeal that, notwithstanding the
unlawful seizure of the items in 2015, the 2021 search warrant was untainted by
that illegality.
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authorized police to take photographs of defendant’s house
to document the search and seizure of evidence.
         Because we conclude that the 2015 warrant combined some lawful search categories with some unlawful
categories, we remand to the trial court to apply the framework established in Turay.6 Under that framework, the trial
court must determine “whether the defendant can ‘establish
a minimal factual nexus between [a constitutional violation] and the challenged evidence’ ” and “if so, … whether
the state can ‘establish that the challenged evidence was
untainted by’ the constitutional violation.” Turay, 

 (quoting State v. DeJong, 

, 

(2021)). Those determinations “ultimately turn[ ] on how the
search in fact was executed.” Id. at 163. Thus, on remand
the trial court must make findings based on the factual
record developed by the parties, and determine which of the
challenged evidence must be suppressed. Id. at 168-69.
          Reversed and remanded.




    6
       The warrant at issue in Turay involved a search and seizure of digital
evidence. However, we understand the Turay court’s articulation of the analytical framework that Oregon courts should apply when “an evidentiary dispute
involves both a warrant-based search and unlawful police conduct” to apply in
equal measure to physical and digital warrants. 

.