State v. Lea

652                  February 5, 2025                No. 77

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 MICHAEL ALAN LEA,
                 aka Michael Allen Lea,
                  Defendant-Appellant.
             Multnomah County Circuit Court
                  21CR45029; A180405

  Benjamin N. Souede, Judge.
  Argued and submitted October 22, 2024.
   Francis C. Gieringer, Deputy Public Defender, argued the
cause for appellant. Also on the opening brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Oregon
Public Defense Commission.
   Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  EGAN, J.
  Reversed and remanded.
Nonprecedential Memo Op: 

 (2025)             653

        EGAN, J.
          In this criminal appeal, defendant challenges his convictions for 16 counts of first-degree encouraging child sexual
abuse, arguing that the trial court erred in denying his motion
to suppress incriminating statements and other evidence discovered on his electronic devices during a random and unannounced examination by supervising parole officers. The state
concedes that the officers elicited incriminating statements
without warning defendant against self-incrimination and
the right to counsel under Miranda v. Arizona, 

, 

, 

 (1966). Defendant asks this court to
reverse the judgment of conviction outright, or in the alternative, to reverse and remand for further factual findings with
regard to the seizure and search. As explained below, on that
assignment, we accept the state’s concession, reverse the judgment of conviction, and remand the matter for additional factfinding on the seizure and search of the devices.
          Before the events that led to the charges in this
case, defendant had twice been convicted of sexual offenses
against children in 1988 and 1995. The state released him
from prison in 2017 under conditions of parole that allowed
local parole officers random and unannounced access to his
living areas with complete access to electronic devices. The
strict conditions of parole prohibited defendant from “viewing
… or possessing any sexually stimulating visual or auditory
materials that are relevant to the person’s deviant behavior.”
(Emphasis added.) Further, parole and probation officers had
broad authority to search defendant or his home if they had
“reasonable grounds to believe that evidence of a violation of
a condition of post-prison supervision [would] be found.” The
conditions of parole also allowed parole officers to conduct a
“walk-through” of defendant’s residence and required defendant “consent to search” where parole officers had “reasonable
grounds to believe that evidence of a violation” would be found.
Finally, defendant was obliged to “[p]romptly and truthfully
answer all reasonable inquiries” of his parole officers.
         This case commenced when defendant’s supervising
officer and another parole officer conducted a random and
unannounced walk-through of defendant’s apartment on
May 23, 2019. One of the parole officers saw what appeared
654                                                State v. Lea

to be a pornographic image of adult women on defendant’s
tablet, which he believed violated defendant’s conditions of
parole. The image prompted the officers to ask questions
about the existence of child pornography on defendant’s
devices without giving defendant the benefit of Miranda
warnings. It is not clear whether the officers seized defendant’s electronic devices prior to questioning or whether
defendant answered the questions before officers seized
the devices. Nevertheless, defendant admitted the existence of child pornography on the electronic device. Those
admissions led to a detailed and expert search of the seized
devices, which in turn led to a request for a search warrant
that led to the filing of the indictment for this prosecution.
         Defendant moved to suppress all inculpatory statements made during the home visit on May 23, 2019, and
all “evidence derived from his seized devices,” including the
images of child sexual abuse. The trial court denied the
motion to suppress on the grounds that (1) the plain-view
and consent exceptions justified the warrantless seizure of
defendant’s devices; (2) the consent exception justified the
warrantless search of defendant’s devices; and (3) the officers
did not unlawfully obtain defendant’s statements during the
home visit, because he was not in compelling circumstances.
         “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 constitutionally sufficient evidence
in the record to support them.” State v. Wampler, 

, 

, rev den, 

 (2023). The
state acknowledges that, under State v. Reed, 

,

 (2023), which was decided after the events that
led to the seizure and search in this case, the parole officers
interrogated defendant during the home visit in compelling
circumstances and that defendant was entitled to Miranda
warnings before officers elicited his statements. The state
further concedes that the statements were significantly
inculpatory, admitted into evidence, and likely affected
the verdict; thus, we must reverse. We accept the state’s
concession based on Reed, and we conclude that the trial
court erred when it denied defendant’s motion to exclude his
statements to officers. See 

 (concluding that the
Nonprecedential Memo Op: 

 (2025)            655

defendant’s unwarned statements were made in compelling
circumstances because she could not leave, and the officers
exerted significant pressure on her based on her probation
conditions).
          The only remaining question is whether we should
remand this matter so that the trial court may develop a factual record to resolve the remaining issue as to whether the
remaining challenged computer evidence was untainted by
the constitutional violation—i.e., whether the search warrant
and evidence from defendant’s devices were sufficiently attenuated from the unlawful interrogation. See State v. Turay,

, 

 (2023) (“[W]hen there is a minimal factual nexus between a constitutional violation and
evidence found pursuant to a search warrant, the evidence
must be suppressed unless the state can ‘establish that the
challenged evidence was untainted by’ the constitutional violation.” (Quoting State v. DeJong, 

, 

 (2021)). Defendant argues that additional factfinding is
not appropriate, because the state had the burden at the suppression hearing to show that the unlawfully obtained statements did not taint the discovery of other challenged evidence,
and the state chose not to present evidence on that issue.
         As a prudential matter, we have consistently allowed
remand for additional factfinding where the application of
a legal doctrine has changed after the parties made their
arguments to the trial court, and the trial court made its
decision. See, e.g., State v. Haugen, 

, 

 (2017) (remanding for the trial court to consider
and apply the facts using the correct legal standard because
it had originally applied a legal standard that the Supreme
Court later held was incorrect); State v. McIntyre, 

, 

 (2021) (concluding that, when
a Supreme Court decision changed the applicable law, the
proper course on appeal was to reverse and remand for
reconsideration of the suppression motion in light of the
changed law); State v. Kamph, 

, 697-
98, 

 (2019) (remanding for additional factual
finding when new case law made the court unsure whether
the trial court applied the correct legal standard); State v.
Shaw, 

, 

 (2021) (remanding
656                                               State v. Lea

for further factfinding and analysis in light of a Court of
Appeals decision that changed the law).
          In this case, the Supreme Court’s decision in Reed
effectively overruled existing precedent that the state and
the trial court relied on when developing the record at the
suppression hearing—viz. that based on our decision in
State v. Dunlap, 

, 

 (2007), the circumstances in which defendant made his statements in this
case were not sufficiently compelling as to require Miranda
warnings. Reed, 

. We recognize that the
trial court gave the state the opportunity to address this
issue when, after the court ruled in the state’s favor, it asked
the prosecutor whether the state wanted to make a record on
attenuation, and the prosecutor declined. However, we conclude that it was reasonable for the state to forego making a
record on attenuation where the trial court’s ruling, which
was consistent with then-controlling precedent, effectively
mooted the need to deal with attenuation except as a contingency, and there was no reason for the state to anticipate
that the Supreme Court would take a different approach
than that taken in Dunlap many years earlier. Thus, we
remand this matter so that the state may present evidence,
and the trial court may make findings, as to whether the
warrant authorizing search of defendant’s devices was sufficiently attenuated from defendant’s statements that parole
officers garnered without benefit of the Miranda warnings.
         Defendant also challenges the denial of his motion
for judgment of acquittal on all 16 counts, arguing that the
state did not prove that defendant duplicated any of the
images when he downloaded them and saved them onto
his devices. We conclude that the trial court did not err in
denying the MJOA. See State v. Crook, 

,

, rev den, 

 (2024) (“The evidence that
defendant downloaded and saved the images to his cellphone
and that he was aware that they depicted child sexual abuse
was not disputed, and that evidence is sufficient to allow a
rational finder of fact to conclude that the state proved each
element of [first-degree encouraging child sexual abuse]
beyond a reasonable doubt.”).
        Reversed and remanded.