State v. Curry

72                   November 6, 2024               No. 800

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              ANTHONY LENAIRE CURRY,
       aka Anthony L. Curry, aka Levone M. Donavon,
       aka Michael Lavone Donovan, aka Tony Jackson,
                    Defendant-Appellant.
              Multnomah County Circuit Court
                    14CR25418; A172629

     Thomas M. Ryan, Judge.
     Argued and submitted April 11, 2022.
   Emily P. Seltzer, 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. Anthony L. Curry filed the supplemental
briefs pro se.
   Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Powers, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.
     HELLMAN, J.
     Reversed and remanded.
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74                                                        State v. Curry

          HELLMAN, J.
         Defendant appeals from a judgment convicting him
of multiple sex offenses against a minor victim, G. He raises
eight assignments of error in his opening brief and seven
additional assignments of error in his pro se supplemental brief. Defendant’s first assignment of error challenges
the trial court’s denial of his motion to suppress evidence
obtained from a warranted search of his residence in 2014.
We conclude that four of the challenged search categories
are insufficiently particular. Because the remedy framework that the Supreme Court established in State v. Turay,

, 

 (2023), applies to all search warrants, we remand to the trial court to apply that framework
in this case.
          We additionally conclude that the trial court did not
err on any of the grounds raised in defendant’s first, second, fourth, and fifth pro se assignments of error. Finally, in
light of our disposition, we do not address defendant’s other
assignments of error because they depend on a record that
is likely to develop differently on remand. State v. Savage,

, 

 (2020) (“Ordinarily, we
will consider issues likely to arise on remand when the trial
court or agency has determined a question of law that will
still be at issue after the case is remanded.”).
I. THE CHARGES AND PROCEDURAL BACKGROUND
         The charges against defendant followed an investigation by Beaverton Police Detective Opitz in late August
2014 after a strip club employee reached out to police with
suspicions that G was working at the club as a dancer under
false identification. After confirming that G was 15 years
old, police stopped defendant’s car while he was transporting G and arrested him. G told Opitz that defendant
had engaged in sexual contact with her multiple times. In
September 2014, Opitz obtained and executed a warrant to
search defendant’s residence.1
    1
      The search warrant was issued by a Washington County circuit court for
offenses that defendant committed against G in Washington County. Those
offenses were similar in nature and during the same timeframe as the Multnomah
County offenses for which defendant was tried and convicted in this case.
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         In early October 2014, G went to CARES Northwest
for a forensic exam and interview, where she made additional disclosures. A few days after the forensic exam, Opitz
obtained a warrant to seize and search defendant’s cell
phone, which police had seized incident to his arrest just
over one month earlier. Both searches uncovered evidence
of criminal activity that, along with G’s statements to law
enforcement, led to the Multnomah County indictment
on 34 counts, which were based on sex acts he committed
against G, advertising G and initiating her into prostitution, and initiating and making money off of her dancing at
strip clubs. In 2018, in response to a motion to suppress evidence discovered during the 2014 warranted searches of his
residence and cell phone, the state obtained and executed
another warrant to search defendant’s cell phone.
          A jury convicted defendant in January 2019 of multiple offenses.2 This appeal followed.
     II. FIRST ASSIGNMENT OF ERROR: MOTION
     TO SUPPRESS EVIDENCE FROM WARRANTED
               RESIDENTIAL SEARCH
        Defendant asserts that the trial court erred in
denying his motion to suppress evidence obtained from the
warranted search of his residence in September 2014. He
argues that the warrant was not sufficiently particular
under Article I, section 9, of the Oregon Constitution, and
the Fourth Amendment to the United States Constitution,
and that the trial court’s error in denying the motion to suppress prejudiced him.
A. Standard of Review
        “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. Vesa, 

, 

 (2023) (citing State v. Paye, 

, 

 (2021)).
    2
      Defendant was convicted of one count of compelling prostitution, ORS
167.017; two counts of using a child in a display of sexually explicit conduct, ORS
163.670; four counts of attempt to commit using a child in a display of sexually explicit conduct, ORS 161.405(2)(b); eight counts of third-degree rape, ORS
163.355; seven counts of third-degree sodomy, ORS 163.385; and one count of
attempt to commit promoting prostitution, ORS 161.405(2)(d).
76                                                 State v. Curry

B.    Factual Background
         “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.” State
v. Cannon, 

, 

 (2019). We
recite the facts accordingly.
        Opitz submitted the search warrant for defendant’s
residence in September 2014. In the affidavit, Opitz discussed his experience and training, as well as his knowledge about sex crimes, cell phones and computers, and then
described the investigation in detail, as follows.
         Opitz started investigating G’s circumstances in
late August 2014 after a manager at a strip club reached
out with suspicions that G was working at the club using
false identification. The manager informed Opitz that G had
danced, fully nude, an estimated five days at the club. Opitz
then confirmed that the identification was fake and conducted a records check on G. He learned that she had been
reported missing in July 2014, after running away from a
substance abuse treatment center.
       Opitz’s investigation led him to more strip clubs in
Washington County and Multnomah County where G had
danced fully nude. A bartender at one of the strip clubs
informed him that on one occasion within the past month:
     “[A] black male subject came into [the strip club] and [G]
     told [the bartender] this unidentified black male was holding onto her money and she was trying to get away from
     him but couldn’t. [G] told [the bartender] that she did not
     like the way that the black male subject was treating her
     and mentioned that she ([G]) was working for him.”
        In addition, Opitz conducted a Google search of G’s
cell phone number and found evidence that G was the victim of sex trafficking. Opitz listed four prostitution advertisements connected with G’s phone number and explained
that each advertisement included multiple photographs,
although none of them showed the subject’s face.
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        In early September 2014, police conducted a traffic
stop of defendant in the parking lot of a strip club where
G was scheduled to work after observing G in his vehicle.
Police arrested defendant and spoke with G, who informed
Opitz that she was there to dance at the club. She had the
fake identification and a pre-paid cell phone in her purse.
G consented for Opitz to search the phone, and he located a
phone contact entry for defendant.
         During an interview, G provided Opitz with the following information regarding “her relationship with [defendant].” G met defendant in the downtown Portland area in
early July 2014. G originally told defendant that she was 17
years old. A few days later, she told defendant that she was
15 years old and that she had run away from a substance
abuse treatment center just before meeting him. After learning G’s actual age, defendant helped G get a fake Oregon
identification card purporting that she was 21 years old.
         G informed Opitz that defendant had used his cell
phone to take sexually explicit photographs of G while she was
in defendant’s home and had posted those photos in online
advertisements that offered G’s services as a prostitute, and
that the clothing she wore in the photographs would be in
defendant’s residence. G also informed Opitz that in early
August 2014, defendant took G to Seattle to work in prostitution, but “she never got any dates” from ads posting her
services in the area, nor did she go on any dates in response
to online prostitution ads posted in the Portland area.
         G informed Opitz that because she did not make
money from prostitution, defendant “had the idea for her to
work and dance at strip clubs.” Defendant selected the strip
clubs and transported her to the clubs for auditions and to
work as a dancer. Opitz explained, “[G] stated that [defendant] told her he was her ‘man’ and that she would give the
money she made from strip[p]ing to him. [G] said [defendant] would take her shopping and she was allowed to spend
her money then.”
        G further told Opitz that defendant made vaginal,
oral, and digital sexual contact with her multiple times per
78                                                            State v. Curry

day at defendant’s residence, and that defendant “told her
she couldn’t tell anyone about them because he could go to
prison for a very long time.”
         G identified defendant’s residence from a photograph and informed Opitz that she had stayed there with
defendant, and that her possessions, including clothing,
were still inside.
         Opitz visited defendant’s residence and contacted
defendant’s next-door neighbor. The neighbor “identified her
neighbor … as a black male named [defendant’s first name].
[The neighbor] told me she believes [defendant] is a pimp
because he always has females with him.” Opitz showed the
neighbor a photo of G, and the neighbor recalled G staying
with defendant. In addition, the neighbor informed Opitz
that she believed that defendant “lives at the residence with
an unknown female.” Defendant’s neighbor later contacted
Opitz and informed him that three individuals, among
whom the neighbor believed were defendant’s aunt and
mother, had since entered defendant’s residence and then
left, carrying two large plastic bags and a laptop computer.
The individuals had left the premises before Portland police
responded. Finally, Opitz learned that defendant had been
arrested in multiple states for prostitution-related crimes.
         Based on that information, Opitz concluded that he
had probable cause to believe that defendant had committed multiple counts of using a child in display of sexually
explicit conduct, ORS 163.670,3 and that evidence related to
those crimes would be found in the residence. A magistrate
issued a warrant to seize and examine nine4 search categories of evidence in defendant’s residence, six of which are at
issue on appeal:
    3
      Under ORS 163.670(1), “A person commits the crime of using a child in a
display of sexually explicit conduct if the person:
     “(a) Employs, authorizes, permits, compels or induces a child to participate
     or engage in sexually explicit conduct for any person to observe or to record
     in a visual recording; or
   “(b) Knowingly records in a visual recording a child participating or engaging in sexually explicit conduct.”
   4
     The warrant listed thirteen objects. Four of the objects were G’s clothing,
which we have grouped together into one category.
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   “- Any photos of [G]
   “- Any property belonging to [G]
   “…
   “- Any document that identifies the occupants of the abovelisted premises (including but not limited to bills, leases,
   checks, credit cards, identity cards, drivers[’] licenses, and
   correspondence).
   “- To search for, seize, and examine any cell phones and
   their contents for any of the evidence of the items listed in
   this warrant.
   “- Any other evidence of the crime of Using Child in Display
   of Sexually Explicit Conduct.
   “- To search for, seize, and examine any computers and
   their contents, including computer hard drives, thumb
   drives, and any other digital evidence storage devices for
   any evidence of the items listed in this warrant.”
Upon executing the warrant, police found clothing that
defendant had purchased for G and that she wore in the pictures that he had taken for prostitution advertisements; a
note containing a script that defendant gave to G for encouraging clients to purchase private dances; and a book titled
“The Art of Seduction,” which G had mentioned that defendant encouraged her to read.
         Before trial, defendant filed a pro se motion to suppress “all evidence, including derivative evidence, oral or
otherwise, arising out of the unlawful search of the defendant’s residence,” on the grounds that the residential search
warrant was insufficiently particular. The court denied
defendant’s motion to suppress.
        At trial, the state used evidence found in the search
of defendant’s residence, including the clothing, the script
for encouraging clients to purchase private dances, and the
“The Art of Seduction.”
C. General Legal Framework
        Challenges to search warrant particularity implicate Article I, section 9, of the Oregon Constitution, and
the Fourth Amendment to the United States Constitution,
80                                                             State v. Curry

areas of law that have been extensively discussed and summarized in numerous other cases.5 Rather than repeating
that legal summary and pathway here, we note the following three legal principles.
         First, “[w]hen a search is warranted, a presumption
of regularity arises, based on the fact that an independent
magistrate has already determined that probable cause
exists; therefore, the defendant bears the burden of proving
the unlawfulness of a warranted search.” State v. Hargrove,

, 

 (2023) (citing State v.
Walker, 

, 

 (2011)). It follows
that “we resolve doubtful cases in favor of warrant validity.”
State v. Cazee, 

, 

 (2021) (citing State v. Van Osdol, 

, 

(2018)).
         Second, when a search warrant includes a duly
incorporated affidavit, then “the contents of the affidavit
assist us in determining the scope of the search that the warrant permitted.”6 State v. Mansor, 

, 

 (2018)7; see also Cannon, 

 (explaining
     5
       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.” Similarly, the Fourth
Amendment provides 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.” Because we ultimately decide
the issues under Article I, section 9, we do not address the parties’ Fourth
Amendment arguments.
     6
       We “consider the warrant and affidavit together … because defendant
did not controvert that the affidavit was physically attached to the warrant.”
Vesa, 

 (citing State v. Mansor, 

, 

(2018)).
     7
       We recognize that Mansor and its progeny have identified and developed
heightened particularity standards for warrants to search for digitally held
information. See, e.g., Mansor, 

 (explaining that warrants for digital
information “must identify, as specifically as reasonably possible in the circumstances, the information to be searched for, including, if relevant and available,
the time period during which that information was created, accessed, or otherwise used”); Turay, 

 (explaining that the “specificity component” of
the particularity requirement “gives rise to special requirements in the context
of a warrant to search for digital data”). When we cite to the Mansor court’s articulation of search and seizure principles, we are not transposing the heightened
standard for warrants to search for digital data into the context of warrants to
search physical places or for physical items. See 

 (discussing
“some of the ways that digital data, whether stored on a computer or other digital
device, differs from physical evidence”). We are instead citing the Mansor court’s
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that “we are confined to the facts asserted within the ‘four
corners’ of the affidavit and any reasonable inferences that
can be drawn from them”). “We examine the affidavit in
a commonsense and realistic fashion, taking into account
both facts and inferences[.]” Cazee, 

 (citing
Van Osdol, 

).
          Third, a search warrant must be sufficiently particular; that is, it “must allow the executing officer to identify with reasonable effort the things to be seized for which
a magistrate has found probable cause.” Hargrove, 

. The “particularity” analysis is informed
by “two related, but distinct, concepts,” specificity and overbreadth. Mansor, 

; see also Turay, 

 (explaining that specificity and overbreadth inform the
particularity analysis “in any context”). “We have decided
fewer cases that address the particularity requirement
as it applies to the ‘thing to be seized,’ ” and the Supreme
Court has articulated that “[t]he doctrine in that area is
highly fact dependent and eludes a single, concrete articulation.” Mansor, 

. At the core, however, the
“purposes of the particularity requirement as to things are
the same for the requirement of particularity as to places.”

         Specificity requires that “the search be as precise as the circumstances allow and that undue rummaging be avoided.” State v. Rose, 

, 

, rev den, 

 (2014) (internal quotation marks
omitted); see also Mansor, 

 (explaining that
in general, a search warrant “must be sufficiently specific
in describing the items to be seized and examined [so] that
the officers can, ‘with reasonable effort ascertain’ those
items to a ‘reasonable degree of certainty’ ” (quoting State v.
Blackburn/Barber, 

, 

 (1973))).
         In addition, a search warrant must not be overbroad,
that is, a search warrant “must not authorize a search that
is ‘broader than the supporting affidavit supplies probable
cause to justify.’ ” Mansor, 

 (quoting State v.
Reid, 

, 

 (1994)); see also Cannon,
comprehensive discussion of Article I, section 9, case law and the historical circumstances surrounding the legal framework. 

.
82                                               State v. Curry

 (“[T]he gravamen of an overbreadth challenge is an asserted lack of probable cause for the invasion
of interests in privacy in premises or items.” (Internal quotation marks omitted.)). As we recently reiterated in State v.
Goode, 

, ___ P3d ___ (2024), there must
be “a nexus … between the item[s] to be seized and criminal behavior.” (Internal quotation marks omitted.) Probable
cause is therefore “examined in terms of cause to believe
that the evidence sought will aid in a particular apprehension or conviction.” 

 (internal quotation marks omitted).
“ ‘[T]he standard of probability requires the conclusion that
it is more likely than not that the objects of the search will
be found at the specified location.’ ” Cazee, 

(quoting State v. Williams, 

, 

(2015)) (emphasis omitted).
         As explained below, we conclude that the residential search warrant constitutes what the Supreme Court
has described as a “mixed warrant” because it “combined
some search categories that satisfied the constitution’s particularity requirement with others that did not.” Turay, 

. That conclusion then requires us to consider the
proper remedy in light of the mixed warrant. As discussed
later, we remand to the trial court “for the development of
a factual record, and for the trial court to make findings,
regarding the standard” articulated by the Supreme Court
in Turay: “[T]he unlawful search categories establish that
all the challenged evidence is presumptively a product of the
constitutional violation as to particularity, but … defendant is not entitled to suppression if the state can prove that
the challenged evidence was untainted by that violation.”

.
D. Analysis of Challenged Search Categories
         Defendant asserts that six search categories in the
2014 residential warrant are not sufficiently particular. We
address those six categories in turn, focusing on whether
they are sufficiently particular for a physical search of defendant’s residence. Although defendant invites us to incorporate aspects of the developing law on specificity for searches of
digital devices into the context of searches of physical places,
the search of a residence is not analogous to the search of
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digital devices, given a digital device’s “unprecedented capacity … to collect and store a diverse and vast array of personal information.” Hargrove, 

 (declining
the defendant’s invitation to apply “the standard for particularity of warrants set forth in Mansor for searching digital
devices … to warranted searches of records maintained by
third-party companies”) (internal quotation marks omitted);
see also Mansor, 

 (discussing “some of the
ways that digital data, whether stored on a computer or other
digital device, differs from physical evidence”).8
         Thus, we review whether the categories challenged
on specificity grounds sufficiently “ ‘describe, with particularity, the place to be searched and the persons or things
to be seized.’ ” Hargrove, 

 (quoting Rose,

). And we review whether the search categories challenged as overbroad “authorize a search that
is ‘broader than the supporting affidavit supplies probable
cause to justify.’ ” Mansor, 

 (quoting Reid, 

). We conclude that four of the challenged categories
are insufficiently particular under Article I, section 9.
     1.   The search category regarding “[a]ny photos of [G]” is
          sufficiently particular.
         Defendant argues that the search category authorizing a search for “any photos of [G]” is overbroad because
it applies to an “entire categor[y] of evidence without any
limitation.” We disagree with defendant’s argument. Opitz’s
affidavit set out facts to establish that G was a 15-year-old
who went missing from a treatment center, had no lawful
reason to be in defendant’s residence, and was likely being
trafficked by defendant and engaging in sexual acts with
him at the residence. Under the circumstances, any photos
of G in defendant’s residence, explicit or not, would be circumstantial evidence to corroborate G’s version of events
and connect defendant to criminal behavior. Beyond that,
Opitz discussed that through a Google search, he found prostitution advertisements on multiple websites that included

    8
      Some of the search categories in the 2014 warrant include the examination
of cell phones and computers; but, as explained below, we conclude that those
categories are overbroad even without considering the heightened particularity
requirements for commands to search a digital device.
84                                              State v. Curry

photographs of G. Opitz explained that G had confirmed
that the photographs were her and informed him that defendant had taken the “sexually explicit photos” for the posts
with his cell phone while she was in his residence and had
posted the advertisements on the internet.
         We have explained that “a warrant can be broad
and still sufficiently particular.” State v. Reger, 

, 

, rev den, 

 (2016). “A person
commits the crime of using a child in a display of sexually
explicit conduct” if that person “[e]mploys, authorizes, permits, compels or induces a child to participate or engage
in sexually explicit conduct for any person to observe or to
record in a visual recording[.]” ORS 163.670(1)(a). Under the
circumstances, where the affidavit purports that defendant
took sexually explicit photographs of G, a 15-year-old girl,
displayed them online, and was sexually abusing her and
trafficking her from the residence for sex, we conclude that
a search category authorizing police to search a residence
for any photographs of G is not “broader than the supporting
affidavit supplies probable cause to justify.” Mansor, 

 (internal quotation marks omitted).
         We further conclude that the search category is
sufficiently specific, because “it identified the place to be
searched”—defendant’s residence—“and the thing to be
searched for and seized”—photographs that are evidence of
defendant’s crimes against G. Rose, 

.
        We therefore conclude that the “any photos” search
category is sufficiently particular.
     2. The search category regarding “[a]ny property” of G
        is sufficiently particular.
          Defendant argues that the search category authorizing a search for “[a]ny property” of G is overbroad because
it applies to an “entire categor[y] of evidence without any limitation.” We again disagree with that argument. Although
an “any property” search category might ordinarily amount
to an invitation for police to engage in “ ‘undue rummaging,’ ” Reger, 

 (quoting State v. Massey, 

, 

, rev den, 

 (1979)),
this warrant concerns a relationship that was unlawful in
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all respects. As explained with regard to the search for photos, there was no lawful reason for G to be in defendant’s
residence or have property there. In the context of their relationship and the purported crimes, finding any of G’s property in defendant’s residence would corroborate G’s version
of events, connect defendant to criminal behavior in abusing
and trafficking her for sex from the residence, and aid in
convicting him.9 We therefore conclude that the “[a]ny property” of G search category is not “broader than the supporting affidavit supplies probable cause to justify.” Mansor, 

 (internal quotation marks omitted).
     3.    The search category regarding “[a]ny document that
           identifies the occupants of the” residence is not sufficiently specific.
        Defendant argues that the search category authorizing police to search for “[a]ny document that identifies
the occupants” of the residence is insufficiently particular
and “tantamount to a general warrant.” Specifically, defendant contends that the command is so “nonspecific” as to
the documents sought—of any nature or size, including as
small as a credit card—and so general as to the target (any
“occupants”)—that it essentially gave police “authority to
search everywhere in the house” for new leads. We agree
with defendant’s argument.
         Even if we assume that documents identifying
persons who occupied the residence at the same time as G
would bear a proper nexus to defendant’s criminal behavior,
the search category is so broad that it effectively allows an
exploratory search of the residence for additional investigatory leads of other persons and possible crimes. The category
is broad enough to include anything from fast-food receipts
to bank records, and it includes no timeframes, either in
the sense of what constitutes occupancy or at what point
that occupancy occurred. Opitz’s affidavit asserted that
the requested items were “evidence of the nature of relationship between [G] and [defendant],” which could supply

    9
      Defendant does not challenge the arguably broader search category that is
more explicitly tied to G’s presence at his residence: “Any document or item that
demonstrates [G] was present at the premises or had contact with persons living
at the premises.”
86                                                             State v. Curry

a timeframe in light of the other parts of the affidavit, but
even that would not be sufficient to prevent an executing
officer from searching virtually anywhere (from every
drawer to clothing pockets) without any guidance as to what
documents might sufficiently identify the occupants of the
residence and connect them to defendant’s crimes.
        We therefore conclude that the search category
authorizing police to search for any document that identified
the occupants of the residence is not sufficiently particular.10
     4. The two search categories authorizing police to
        “search for, seize, and examine” any cell phones, computers and “other digital evidence storage devices”
        and their contents for any evidence of the items listed
        in the warrant are unconstitutionally overbroad.
         The two search categories that authorized the
search of “any” cell phones and “any” computers or digital storage devices in the residence are unconstitutionally
overbroad under Cannon, 

, and State v.
Cantrell, 

, 

 (2023). “Where a
search warrant authorizes the search of multiple electronic
devices, the supporting affidavit must supply probable cause
‘for each device that a warrant authorizes to be searched.’ ”
Cantrell, 

 (emphasis in original; citing
Cannon, 

). It follows that “[a] warrant
that is supported by probable cause to search some identified devices, but not all identified devices, is overbroad and
invalid.” Cantrell, 

 (citing State v. Friddle,

, 

 (2016)).
         In this case, the search warrant and supporting
affidavit do not establish probable cause for the police to
search, seize, and examine “any cell phones,” “any computers,” and “any other digital evidence storage devices.” As
in Cannon and Cantrell, Opitz did not present information
    10
       To the extent that defendant is seeking to protect the privacy rights of
others whose identifying documents might have been in his residence, that
argument is irrelevant as to whether defendant’s personal privacy rights under
Article I, section 9, were violated due to the particularity of the search category.
State v. Soto-Navarro, 

, 

 (2021) (explaining that
“under the current case law, a person may not seek suppression of evidence to
vindicate someone else’s rights”).
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about why there was probable cause to believe that all the
identified devices would contain evidence of use of a child in
a display of sexually explicit conduct. Nor could he, because
like in Cannon, this search category “authorized a search of
all of defendant’s electronic devices, including devices that
[his] affidavit did not indicate that defendant even owned.”
Cannon, 

.
           Nor did Opitz’s discussion of his training and experience create “the necessary nexus between the nature of
the crime, the evidence sought, and the place to be searched,
i.e., all of defendant’s electronic devices.” 

. While
Opitz’s statements “may provide a basis for concluding that
any single device owned by defendant could possibly contain” evidence of the crime, they do not provide a basis for
concluding that every cell phone, computer, and other digital device owned by defendant was more likely than not
to contain such evidence. 

 Opitz did not explain how his
knowledge about cell phones and computers connected to
the particular facts of the present case. 11 And Opitz did not
explain why he had probable cause to believe that evidence
might be found on any devices located in defendant’s residence.12 “The best that can be said … is that it is reasonable to think that such devices might contain evidence, not
that it is likely that they would.” Cantrell, 

(citing Cannon, 

).
         We therefore conclude that the two search categories authorizing police to “search for, seize, and examine”
“any cell phones and their contents for any of the evidence
of the items listed in this warrant” and “any computers
and their contents, including computer hard drives, thumb
drives, and any other digital evidence storage devices for
any evidence of the items listed in this warrant” are overbroad in violation of Article I, section 9.
     11
        Opitz explained generally how cell phones store various data and access
data on the internet; how cell phone records contain user data and phone companies transport and retain data; how various systems and devices store data; and
how police conduct forensic searches of digital devices.
     12
        Opitz’s statements may have provided a basis to conclude that the cell phone
seized incident to defendant’s arrest more likely than not contained evidence of use
of a child in a display of sexually explicit conduct, but that cell phone was not likely
to be found in defendant’s residence because it was already in police custody.
88                                                              State v. Curry

     5. The search category that authorized police to search
        for “[a]ny other evidence of the crime of Using Child
        in Display of Sexually Explicit Conduct” is not sufficiently particular.
         We conclude that the search category authorizing
a search for “[a]ny other evidence” of the crime of using a
child in a display of sexually explicit conduct is not specific
enough to prevent “undue rummaging” by executing officers. Massey, 

.
         As an initial matter, we reject the state’s argument
that the challenged category is a permissible restatement of
the plain view doctrine. The plain view doctrine applies in
the context of seizures and allows officers to “seize an item
if the officer can do so from a position where that officer is
entitled to be and the incriminating character of the item
to be seized is immediately apparent.” State v. Currin, 

, 

 (2013) (internal quotation
marks omitted). But we are not confronted with a question
of whether officers could seize evidence they had lawfully
discovered. Instead, we are evaluating a search category
that authorizes officers to search for “[a]ny other evidence”
of defendant’s alleged crimes.13
        We conclude that the “[a]ny other evidence” search
category is not specific enough to prevent “undue rummaging” by executing officers. Compare Massey, 

, with Reger, 

 (where the court concluded that a category was sufficiently particular when the
“warrant did not provide police with carte blanche to begin
‘rummaging’ through [the] defendant’s home for anything
but those kinds of evidence in connection to specific charges”
(emphasis added)).14
    13
       State v. Farrar, 

, 

, cert den, 

 (1990), does
not aid the state’s argument. The Mansor court limited the precedential utility of
Farrar by recognizing that it relied in large part on former ORS 133.585 (1973),
repealed by Or Laws 1997, ch 313, § 37. 

. As the Supreme Court
recognized, Farrar notwithstanding, “merely identifying the crime under investigation [does not provide] sufficient particularity.” 

.
    14
       The legal standard established in Mansor and its progeny, “that a warrant
authorizing a search for all ‘evidence of a particular crime’ is not sufficiently
specific to pass constitutional muster,” applies squarely to warrants to search for
digital data. State v. Bock, 

, 

 (2021) (citing State v.
Savath, 

, 

, rev den, 

 (2019), and Mansor,
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         In so concluding, we recognize that “[a] general
investigative search of a crime scene … differs in nature
from a search to seize a specific object, such as stolen property or a drug shipment.” State v. Hodges, 

, 

 (1979). We further recognize that “in
an investigative search of the scene of a recently committed crime, the police do not know in advance what specific
items they seek, but do know that instrumentalities and
other evidence of crime probably exist and they know the
premises upon which such items will be found.” 

 However,
we also recognize that “[t]he purpose behind the particularity requirement is a prohibition against general warrants
whereby administrative officers determine what is and
what is not to be seized, to guide the officer to the thing
intended to be seized and to minimize the danger of unwarranted invasion of privacy by unauthorized seizures.” Reger,

 (internal quotation marks, brackets, and
ellipses omitted). And we recognize that “[t]he ‘degree of
specificity’ required to achieve that objective ‘depends on the
circumstances and the nature of the property to be seized.’ ”

 at 91 (quoting Rose, 

).
         In the present case, under the search categories
that we have concluded are valid and those that defendant
does not challenge, police were authorized to search for the
following categories of items for evidence of using a child in
display of sexually explicit conduct: “photos of the interior
and exterior of the residence”; “[a]ny photos of [G]”; enumerated items of clothing that G was wearing in photographs
that were posted online; and “[a]ny document or item that
demonstrates [G] was present at the premises or had contact with persons living at the premises.” The authorization
to search for “[a]ny other evidence” of the named crime, in
addition to the broad authorization under those search categories, amounts to a general authorization to rummage
through defendant’s residence. Compare Massey, 

, with Reger, 

 (“Thus, as we concluded in Rose, because the warrant limited police to search
for particular types of evidence at a particular location in

). We do not foreclose the potential that a similar search category
in a warrant to search a physical place or for physical items, under different circumstances, might pass constitutional muster.
90                                                   State v. Curry

connection with a specific set of alleged crimes, it was sufficiently particular.”).
        We therefore conclude that the “[a]ny other evidence” search category is not sufficiently particular.
      6. Remedy: We reverse for the parties to create a record
         under the Turay framework for addressing particularity issues in mixed warrants.
         Having determined that four of the challenged
categories failed to satisfy the constitutional particularity
requirement, we consider the appropriate remedy and apply
the legal framework introduced in Turay, 

.
Because the state did not have an opportunity to “develop a
factual record on the question whether the challenged evidence was untainted by” the insufficiently particular search
categories, we conclude that “it is appropriate to remand for
the trial court to determine which, if any, of the challenged
evidence must be suppressed under Article I, section 9.” 

. As such, we do not reach the parties’ arguments
about harmlessness.
           The Turay court
     “held for the first time that … unlawful search categories
     establish that all the challenged evidence is presumptively
     a product of the constitutional violation as to particularity,
     but that [a] defendant is not entitled to suppression if the
     state can prove that the challenged evidence was untainted
     by that violation.”

.
        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 equally to
warrants to search physical places for physical items and
to warrants for digital data. 

. The Turay court
does not limit the remedy to warrants to search for digital
data, nor do we understand the underlying legal principles
to be specific to those types of warrants. To the contrary,
the Turay court primarily relied on two cases concerning
searches of physical places and seizures of physical items,
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DeJong and Johnson, in reaching its conclusion. 

 at 164-
69; see State v. DeJong, 

, 

 (2021)
(concerning a motion to suppress evidence obtained from a
warranted search of a residence); State v. Johnson, 

, 

 (2003) (Johnson I) (concerning a motion to
suppress clothing and boots that police had seized from the
defendant at the police station).
         The Turay court answered “the extent, if any, to
which evidence obtained in a search performed pursuant
to a warrant can be considered lawfully obtained when the
warrant combined some search categories that satisfied the
constitution’s particularity requirement with others that did
not.” 

. The court explained that “to determine
the extent to which evidence must be suppressed as the
product of a constitutional violation, our case law directs us
to consider what actually transpired,” which, in the case of a
mixed warrant, “ultimately turns on how the search in fact
was executed.” 

. The court declined to “adopt the
‘severance’ doctrine,” which we had long applied, concluding
that in the context of mixed warrants, its “case law does not
permit us to presume that the state lawfully obtained any
evidence through the search.” 

.
         Thus, for mixed warrants, courts must address
two questions: “[1] whether the defendant can ‘establish a
minimal factual nexus between [a constitutional violation]
and the challenged evidence’;” and “[2] if so, … whether
the state can ‘establish that the challenged evidence was
untainted by’ the constitutional violation.” 

 (quoting DeJong, 

). Restated, “when the defendant
establishes a minimal factual nexus between a constitutional violation and challenged evidence that was obtained
pursuant to a warranted search, there is a presumption that
the challenged evidence must be suppressed, but the state
has the opportunity to rebut that presumption.” 

 (citing
Johnson I, 

).
         We therefore reverse for further proceedings because
“[n]either party had the opportunity below to address
the standard that we have now identified as governing
whether the challenged evidence must be suppressed when
a warrant contains some search categories that satisfy the
92                                               State v. Curry

particularity requirement and others that do not,” nor was
either party “alerted to the need to create a factual record to
determine whether, under that standard, the evidence must
be suppressed.” Turay, 

. We remand for development of that record and “for the trial court to determine
which, if any, of the challenged evidence must be suppressed
under Article I, section 9.” 

         Our remand obviates the need to address defendant’s second through eighth assignments of error, as well
as defendant’s third, sixth, or seventh pro se assignments
of error. Defendant’s second and third assignments of error
challenge the trial court’s denial of his motions to suppress evidence obtained from the 2014 and 2018 cell phone
searches. Both of those search warrants incorporated affidavits that relied on evidence obtained from the search of
defendant’s residence. We express no opinion as to how the
trial court will rule after engaging in the Turay analysis.
We do not address defendant’s fourth through sixth assignments of error, which concern his motion for an election and
the admissibility of certain evidence, because the record
is likely to develop differently on remand. We do not reach
defendant’s seventh or eighth assignment of error, which
concern nonunanimous jury instructions and sentencing,
because they are not likely to arise on remand. See Savage,

. Finally, we do not reach defendant’s
third pro se assignment of error, which raises a Brady violation that arose at sentencing, or his sixth and seventh pro
se assignments of error, which concern jury instructions and
sentencing.
III.   REMAINING PRO SE ASSIGNMENTS OF ERROR
         We turn to defendant’s first, second, fourth, and
fifth pro se assignments of error, because they will still be at
issue when the case is remanded. See Savage, 

. We conclude that the trial court did not err.
A. Motion to Suppress Evidence from the First Traffic Stop
          In defendant’s first pro se assignment of error, we
understand him to assert that the trial court erred in denying his motion to suppress evidence resulting from the initial traffic stop that led to his arrest, because the interaction
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was marred by multiple state and federal constitutional violations. “We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s
factual findings if there is any constitutionally sufficient
evidence in the record to support them.” State v. Maciel-Figueroa, 

, 

 (2017). “When
the trial court did not make express findings and there is
evidence from which the trial court could have found a fact
in more than one way, we will presume that the trial court
decided the facts consistently with the trial court’s ultimate
conclusion.” 

. We conclude that the trial court did
not err.15
          The record amply reflects that officers had reasonable suspicion to stop defendant. The officers were “able to
point to specific and articulable facts that support[ed] [their]
belief that [defendant] may have committed or may be about
to commit” the crime of using a child in a display of sexually
explicit conduct, and their “subjective belief [was] objectively
reasonable, given the facts in the record.” 

. The
record supports that prior to stopping the vehicle that defendant was driving, the police knew the following: (1) G was
underage; (2) G had applied for and danced at multiple strip
clubs; (3) at one of the clubs, G was accompanied by a male
who held her money; (4) G told an employee at a strip club
where she was working that she was trying to get away from
the male and could not; (5) using a phone number G had
used at one of the strip clubs in connection with employment
and Googling that number, police had found multiple on-line
prostitution ads, some of which used the stage name that
G used when working at the strip clubs; and (6) defendant
transported G to the parking lot of a strip club just before
she understood a dance shift to be starting. Those facts support reasonable suspicion for the investigatory traffic stop.
        In addition, the police had authority to search defendant’s vehicle without a warrant as a consent search. The
state has shown by the preponderance of the evidence that
     15
        Under this assignment of error, we also understand defendant to argue
that he did not consent to the police’s search of his cell phone on or about the day
of his arrest. We conclude that defendant’s phone was not searched by police prior
to obtaining a search warrant and reject defendant’s arguments without further
discussion.
94                                                          State v. Curry

someone having the authority to do so gave the officers consent to search defendant’s vehicle, and that the consent was
given voluntarily. State v. Bonilla, 

, 

 (2015). Defendant gave an officer permission to move
his car into a parking spot, which led to an officer’s plainview observation of some evidence. Soon after, when defendant informed officers that he lacked authority to consent
to a search of the vehicle because it was a rental car rented
under his mother’s name, investigating officers obtained her
voluntary consent before the search. We therefore conclude
that the trial court did not err.
B.   Speedy Trial Violation
         In defendant’s second pro se assignment of error,
we understand him to argue that the trial court erred in
denying his motion to dismiss for lack of a speedy trial. “We
review a trial court’s denial of a defendant’s motion to dismiss for lack of a speedy trial for legal error and we are
bound by the trial court’s findings of fact if they are supported by the record.” State v. Krieger, 

,

 (2020), rev den, 

 (2021) (citing State
v. Johnson, 

, 

 (2007), cert den,

 (2008) (Johnson II)). It follows that “[a] trial
court’s factual findings ‘concerning the length and reasons
for the delay, as well as the type, level, and cause of any
anxiety that defendant suffered, are binding if supported
by evidence.’ ” Krieger, 

 (quoting Johnson II,

).
         The trial court did not err in concluding that the
reasons for the delay were justified and denying defendant’s
speedy trial motion. The case was complex, both because of
the nature and number of charges and because other related
charges had previously been tried in a different county. In
addition, defendant faced a severe penalty if convicted.
Finally, as the trial court found, defendant “more often than
not moved for” the continuances and never “timely or meaningfully” objected to others that were granted.16

     16
        We note that the trial court expressly found that there was no prejudice
to defendant from either witness that he was unable to call due to the passage
of time, because those witnesses were not alibi witnesses, nor could defendant
articulate any specific prejudice to his defense from their absence.
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C. Denial of Demurrer
         Under defendant’s fourth pro se assignment of error,
we understand him to argue that the trial court erred in
denying his demurrer to the indictment, which he made in
response to the state’s amendment of the indictment. That
amendment added allegations to support “the basis for joinder,” or “facts sufficient to establish compliance with the
joinder statute,” as required by State v. Poston, 

, 

 (2016), adh’d to on recons, 

, 

, rev den, 

 (2017). We understand
defendant to assert that the amendment was of substance,
not form, and to argue that it therefore violated Article
VII, section 5, of the Oregon Constitution and the Grand
Jury Clause of the Fifth Amendment to the United States
Constitution.
          “Whether the trial court properly allowed the
amendment to the indictment to add the allegations supporting joinder is one of law; we therefore review for legal
error.” State v. Haji, 

, 

 (2018),
aff’d on other grounds, 

, 

 (2020)
Haji I) (footnote omitted). Like the Supreme Court concluded
in Haji, and for the same reasons, we conclude that the trial
court did not err in concluding that the amendment was one
of form and denying defendant’s demurrer. State v. Haji, 

, 

 (2020) (Haji II) (explaining that
“the defect in the indictment was one of form, and the trial
court correctly permitted the district attorney to amend the
indictment,” when “the district attorney added only statutory bases for joinder of multiple crimes, which were consistent with the allegations of facts in the original indictment”);
see also Haji I, 

 (“The only thing that
the amendments did was demonstrate that the charges met
the statutory procedural standard for being tried as part of
a single case, so as to obviate the need for multiple trials.”).
D. Double Jeopardy
        Under defendant’s fifth pro se assignment of error,
we understand him to argue that the trial court erred in
denying his motion to dismiss after concluding that there
was no double jeopardy issue based on overlap between the
96                                                              State v. Curry

Washington County and Multnomah County charges. “In
reviewing a motion to dismiss under ORS 131.515, we examine the trial court’s legal conclusions for errors of law, and
we defer to its factual findings to the extent that the record
supports them.”17 State v. Wilder, 

, 

 (2020), rev den, 

 (2021). We conclude that
the trial court did not err. Defendant was prosecuted only
for events that occurred in Multnomah County. Although
the acts defendant committed in the two counties were similar, the record supports the trial court’s determination that
they were not part of one “continuous and uninterrupted”
criminal episode. The trial court therefore did not commit
legal error in denying defendant’s motion.
                             VI. CONCLUSION
         On defendant’s first assignment of error, we conclude
that four of the challenged search categories in the residential warrant are insufficiently particular and remand to the
trial court to develop a record under the Turay framework
in light of our conclusions. We conclude that the trial court
committed no error on defendant’s first, second, fourth, and
fifth pro se assignments of error. Finally, in light of our
disposition, we do not address defendant’s second through
eighth assignments of error, nor defendant’s third, sixth, or
seventh pro se assignments of error.
              Reversed and remanded.




     17
          ORS 131.515 provides, in relevant part,
           “Except as provided in ORS 131.525 and 131.535:
           “(1) No person shall be prosecuted twice for the same offense.
         “(2) No person shall be separately prosecuted for two or more offenses
     based upon the same criminal episode, if the several offenses are reasonably
     known to the appropriate prosecutor at the time of commencement of the first
     prosecution and establish proper venue in a single court.”