No. 225 March 19, 2025 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
NATHAN DALE WAGNER,
Defendant-Appellant.
Jackson County Circuit Court
20CR09499, 20CR12326;
A179920 (Control), A179921
Lorenzo A. Mejia, Judge.
Argued and submitted January 28, 2025.
Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Reversed and remanded.
2 State v. Wagner
TOOKEY, P. J.
In this consolidated appeal, defendant challenges
his convictions in two cases for three counts of using a child
in a sexually explicit display, ORS 163.670. Those convictions were entered after defendant pleaded no contest in
both cases, reserving his right to appeal the trial court’s
denial of his two motions to suppress evidence. On appeal,
defendant raises an assignment of error with respect to the
trial court’s denial of each motion to suppress evidence.
Defendant’s motions concerned two categories of
evidence: (1) evidence from an SD card that was seized from
defendant’s vehicle (the SD card evidence); and (2) evidence
from the victim’s mother’s camera (the camera evidence).
Regarding the SD card evidence, on appeal, the state concedes that the trial court erred when it did not suppress
that evidence. We agree with and accept that concession.
Regarding the camera evidence, we conclude that the trial
court erred in denying defendant’s motion to suppress,
because police exploited their unlawful conduct with regard
to the SD card evidence to obtain the camera evidence.
Consequently, we reverse defendant’s convictions
and remand to the trial court to give defendant the opportunity to withdraw his pleas.
STANDARD OF REVIEW
“We review a trial court’s denial of a motion to suppress for errors of law and are bound by the court’s factual
findings if there is constitutionally sufficient evidence to
support them.” State v. DeJong, 368 Or 640, 643,
497 P3d
710 (2021). “If the trial court did not make express findings
as to all pertinent issues and there is evidence from which
the court could have found a fact in more than one way, we
will presume that the court found the fact that is consistent
with its ultimate conclusion.”
Id.
HISTORICAL FACTS AND PROCEDURAL HISTORY
Defendant temporarily kept his vehicle at someone
else’s property. Police developed reasonable suspicion that
the owner of that property was engaged in criminal conduct
and obtained warrants to search the owner, the property,
Cite as 339 Or App 1 (2025) 3
and any vehicles on the property for evidence of encouraging
child sex abuse. In executing that warrant, police searched
defendant’s vehicle and found an SD card containing evidence depicting abuse by defendant of an unidentified child
victim. Prior to discovery of the SD card evidence, police did
not suspect defendant of such crimes. As a result of the discovery of the SD card evidence, the state indicted defendant
in Case No. 20CR09499.
Police then posted a press release to Facebook.
Although a copy of the press release was not provided to the
trial court, and is not in the record, we understand the press
release to have disclosed, at a minimum, defendant’s full
name, the nature of the SD card evidence, and the charges
brought against defendant. We also understand the press
release to have requested “more information” to assist police
in identifying the unidentified child victim, though the particular wording of that request is not evident.
As a result of the press release, J contacted police.1
J had known defendant personally and believed that her
child, L, was the victim of the crimes described in the press
release. To confirm this, police showed J the images that
were on the SD card, and interviewed J and L. Police ultimately determined that L was the victim. Police also accompanied J to her house and confirmed that her residence was
the scene of the creation of some of the images on the SD
card. Police, at that point, believed that they had concluded
“the part of their investigation” in Case No. 20CR09499 that
involved J.
Some days later, J came to police with a camera
that she had loaned to defendant and asked police to search
the camera. Police found further evidence of abuse of L by
defendant on the camera, and defendant was then indicted
in Case No. 20CR12326.
Defendant moved to suppress both the SD card
evidence and the camera evidence. The trial court granted
1
We note that the trial court requested a copy of the press release from the
parties. But a witness for the state, mistakenly, provided the trial court with a
later press release—not the one to which J had responded—which resulted in a
copy of the press release to which J had responded not being a part of the record
in this case.
4 State v. Wagner
defendant’s motion as to the SD card evidence but denied
his motion as to the camera evidence. Police then obtained
a second series of search warrants culminating in a second search of the SD card. Defendant again moved to suppress the SD card evidence, and the trial court denied that
motion. Defendant then entered a conditional plea of no contest to three counts of using a child in a sexually explicit display. He now appeals the judgment convicting him of those
counts.
ANALYSIS
Regarding the SD card evidence, defendant contends, and the state concedes, that the trial court erred
when it denied his motion to suppress that evidence. The
parties agree that is so because the initial warrant to search
vehicles—including defendant’s vehicle—was not supported
by probable cause. See State v. Thibodeaux, 173 Or App 353,
358,
22 P3d 248 (2001) (explaining that a warrant authorizing a search of a vehicle on a premises must be supported
by an affidavit that establishes “some nexus between [the]
defendant’s vehicle and the objects sought” (emphasis in
original)). Further, as the state puts it, the “second warrant
authorizing a new forensic search of the SD card did not
cure the illegalities in the first warrant.” We agree with and
accept the state’s concession that the trial court erred in
denying defendant’s second motion to suppress the SD card
evidence.
Regarding the camera evidence, defendant contends that the trial court erred when it denied his motion
to suppress that evidence, because the “illegality [of the SD
card search] requires suppression of all evidence that the
state obtained as a result, including the identification of L
and the discovery of [J]’s camera.” The state responds that
because J, a third party, voluntarily brought the camera to
police and consented to a search of the camera for evidence,
the camera evidence is attenuated from and untainted by
the unlawful conduct that led to the SD card evidence.
“When the state has obtained evidence following
the violation of a defendant’s rights under Article I, section
9, we presume that the evidence was tainted by the violation
Cite as 339 Or App 1 (2025) 5
and must be suppressed.” State v. Benning,
273 Or App 183,
194,
359 P3d 357 (2015) (internal quotation marks omitted).
The state has the burden of rebutting that presumption:
“The state may rebut that presumption by proving, as relevant here, that the police did not exploit the unlawful police
conduct to obtain the challenged evidence—that is, that the
unlawful police conduct was independent of, or only tenuously related to the disputed evidence.” State v. Riley,
288
Or App 264, 271,
406 P3d 81 (2017), rev den,
362 Or 861
(2018) (internal quotation marks omitted). “The state must
therefore prove that the violation of defendant’s rights had
such a tenuous factual link to the disputed evidence that
the unlawful police conduct cannot be properly viewed as
the source of that evidence.” Id. (internal quotation marks
omitted).
“To determine whether the state proved attenuation,” we consider the “totality of the circumstances,” including certain factors identified by the Supreme Court in State
v. Unger, 356 Or 59, 88,
333 P3d 1009 (2014), i.e., “the temporal proximity between the unlawful police conduct and the
discovery of the challenged evidence; the presence of mitigating circumstances; the presence of intervening circumstances; the purpose and flagrancy of the unlawful police
conduct; and the nature, extent, and severity of the constitutional violation.” State v. Jones (A154424),
275 Or App 771,
778,
365 P3d 679 (2015) (internal quotation marks omitted). Ultimately, however, “[t]he underlying question those
factors aim to address is whether police exploited or took
advantage of or traded on their unlawful conduct to obtain
the challenged evidence, or—stated another way—whether
the challenged evidence was tainted because it was derived
from or was a product of the unlawful conduct.”
Id. at 778-79
(internal quotation marks omitted).
In this case, in considering those factors, we remember the importance of the “exploitation analysis,” described
above, in which we must engage: “Exploitation analysis recognizes that police conduct that constitutes an illegal stop
or an illegal search may … require suppression because
the police took advantage of information gained from their
illegal conduct or some other aspect of that conduct to obtain
6 State v. Wagner
… an advantage that they would not have had the police
stayed within the bounds of the law.” Unger, 356 Or at 74 (so
noting in the context of gaining the “advantage” of consent to
search). Put another way, evidence obtained after an unlawful search must be suppressed, absent attenuation, because
“the remedy for governmental intrusion upon the personal
right guaranteed under Article I, section 9, is ‘to restore the
parties to the position they would have been in’ prior to the
governmental intrusion.” State v. Serrano (A173250),
324 Or
App 453, 463,
527 P3d 54, adh’d to as modified on recons,
325 Or App 296,
528 P3d 1219 (2023), rev den,
372 Or 192
(2024) (quoting State v. Mansor,
363 Or 185, 221,
421 P3d
323 (2018)); see also State v. Tyler,
218 Or App 105, 109,
178
P3d 282 (2008) (“The rationale for suppressing unlawfully
obtained evidence under Oregon law is remedial—that is,
its purpose is to restore the defendant to the same position
as if the government had stayed within the law.”).
Thus, here, the question is whether, considering
the totality of the circumstances, the challenged camera
evidence was tainted because police “took advantage of
information gained” from their unlawful conduct—that is,
whether the camera evidence was “derived from” or was “a
product of” the unlawful police conduct. We conclude that it
was.
J’s decision to bring her camera to police arose
directly from the unlawful police conduct in seizing the SD
card. The trial court determined—and the state acknowledges—that J “probably would never have thought about the
camera or taken it to police had she not been aware of the
images found on the SD card.” That is, the police conduct in
seizing the SD card was not merely incidental to the discovery of the camera evidence; it was the direct cause of that
discovery, via the Facebook press release. Thus, the “intervening circumstances” factor weighs in favor of suppression
in this case. See Benning, 273 Or App at 200-01 (explaining that “the strength of the causal connection between an
unlawful seizure and the challenged evidence” bears on “the
significance of the discovery of the [challenged evidence] as
an intervening circumstance”). Moreover, it is relevant that
the nature of the intrusion into defendant’s privacy was
Cite as
339 Or App 1 (2025) 7
severe: Police conducted an unauthorized search of defendant’s private digital data, which, as the Supreme Court has
recognized, “carries with it an enhanced risk of extensive
governmental intrusion into personal privacy interests that
are equal to, or even surpass, the privacy interest in one’s
home.” State v. Turay,
371 Or 128, 146,
532 P3d 57 (2023).
At bottom, however, in conjunction with the facts
noted above, it is dispositive that there is no dispute that
police “took advantage of information gained” from their
unlawful conduct—i.e., their search and seizure of the SD
card—to obtain the challenged camera evidence: The SD
card evidence caused police to issue a press release that
identified defendant, described the nature of the evidence
that they unlawfully obtained from the search of the SD
card, and sought additional information from the public.
And when J responded to that press release—as police
hoped someone would—police showed her the unlawfully
obtained SD card evidence. The camera evidence must be
suppressed to “restore the defendant to the same position as
if the government had stayed within the law,” Tyler, 218 Or
App at 109, and had not conducted the unlawful search and
seizure of the SD card.
In seeking a different result, the state argues that
certain factors identified by the Supreme Court in Unger—
”temporal proximity,” “mitigating circumstances,” and the
“purpose and flagrancy of the unlawful police conduct”—are
not relevant in this case, because those factors are focused
on the effects of unlawful police conduct on a defendant’s
consent, not on a third party’s consent. See Unger, 356 Or at
80-81 (discussing those factors in the context of the defendant’s consent to search his home). The state’s proposal
regarding how to evaluate the Unger factors in a case such
as this one carries some persuasive force. And the state, to
be sure, has a legitimate interest in investigating crimes of
the sort that defendant has been accused of committing.
But, as noted, the purpose of the Unger factors is ultimately to identify whether “police exploited or
took advantage of or traded on their unlawful conduct to
obtain the challenged evidence.” Jones, 275 Or App at 778-
79 (internal quotation marks omitted). Given the totality
8 State v. Wagner
of circumstances here—including police issuing a press
release which they would not have issued in the absence of
the unlawfully obtained evidence, and which described the
nature of the unlawfully obtained evidence—we conclude
that the trial court erred in determining that the state met
its burden to establish that the camera evidence was sufficiently attenuated from the SD card evidence.2
Reversed and remanded.
2
Given the facts of this particular case, we note that the other factors identified in Unger—including “the purpose and flagrancy of the unlawful police conduct”—do not suggest a different result.
