No. 610 July 9, 2025 689
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MAX JACOB BARTON,
Defendant-Appellant.
Linn County Circuit Court
22CR27032; A182121
Brendan J. Kane, Judge.
Submitted February 25, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Reversed and remanded.
690 State v. Barton
TOOKEY, P. J.
Defendant entered conditional no contest pleas to
nine charges arising from his theft of items from a Bureau
of Land Management (BLM) site and his involvement in an
illicit mining operation on private property.1 On appeal, in
a single assignment of error, defendant challenges the trial
court’s denial of his motion to controvert a warrant and to
suppress evidence obtained from a search of his property
pursuant to the warrant, contending that the affidavit in
support of the warrant failed to provide probable cause and
that the warrant lacked sufficient particularity.2 In the
trial court, defendant argued that the affidavit did not provide probable cause and that the warrant was overbroad.
Defendant renews those arguments on appeal. We reject
defendant’s argument that the affidavit failed to provide
probable cause. However, we agree with defendant that the
warrant was overbroad by authorizing a search for any evidence of crimes including but not limited to the listed crimes.
We therefore reverse for defendant to consider whether to
withdraw his conditional pleas.
Linn County Sergeant Eves applied for the warrant
based on a complaint from Rick Campbell of Cascade Timber
Consulting (CTC) that there were unauthorized entries onto
CTC’s timber property by an all-terrain vehicle (ATV) or a
utility-terrain vehicle (UTV), and that there was an unauthorized mining operation on CTC’s property for Holly Blue
agate, a popular form of rock in Western Oregon. Campbell
had set up trail cameras and captured photographs of an
ATV driving on CTC property, and he shared those photographs with Eves. Eves and Campbell hiked to the location
of the mining operation and found items that had been stolen from the BLM, including a UTV.
1
Defendant entered pleas on one count of criminal trespass in the second
degree, ORS 164.245; one count of criminal mischief in the first degree, ORS
164.365; one count of unlawful cutting and transport of special forest products,
ORS 164.813; one count of theft in the first degree, ORS 164.055; two counts of
unauthorized use of a vehicle, ORS 164.135; two counts of possession of a stolen
vehicle, ORS 819.300; and one count of unlawful possession of a firearm, ORS
166.250.
2
Defendant’s briefing does not separately address his contention that the
trial court erred in denying his motion to controvert. Therefore, we do not further
discuss it.
Cite as 341 Or App 689 (2025) 691
Campbell placed another trail camera at the mining site and subsequently captured photographs of a camouflaged Honda UTV approaching the mining area and a male
and female adult loading parts from the stolen UTV onto
the bed of the Honda UTV. The camera captured the male
using items stolen from the BLM location. Deputies recognized the male as defendant. Eves spoke to an individual
who had purchased Holly Blue agate from defendant. Eves
drove to defendant’s property, and, from the public road, he
could see the camouflaged Honda UTV.
Eves filed an application for a warrant. The trial
court issued a warrant authorizing a search of defendant’s
property for
“evidence of, crimes including but not limited to, Theft
in the First Degree, Criminal Mischief in the First
Degree, Possession of Stolen Vehicle, Unlawful Cutting/
Transporting Special Forest Products and Criminal
Trespass in the Second Degree”
The warrant described the property to be searched and the
items that law enforcement were authorized to search for
and seize:
“[A]ll evidence of [sales] receipts, pawn slips, photographs,
GPS devices, Holly Blue rocks, parts and pieces from stolen
UTV, shovels, picks, buckets, gloves, face masks, helmets,
goggles, clothing as seen on trail camera photographs, stolen tools from BLM, including but no[t] limited to, 250 foot
3/8" Amasteel blue winch rope, red snatch blocks, 3" x 14'
nylon straps, 1.5" x 12' nylon straps, XL rop[e] bag, shackles,
steel carabiner, cable/rope grip puller, Hi-lift jack, Hi-lift
jack accessory kit, 12v air compressor and stolen property.”
Defendant moved to suppress the evidence seized
pursuant to the warrant arguing that the affidavit failed
to provide probable cause, and he also argued that the
warrant was overbroad. The trial court denied the motion.
Thereafter, defendant entered his conditional pleas.
On appeal, defendant challenges the existence of
probable cause for the issuance of the warrant, contending that the affidavit’s connection of the stolen items to
defendant’s property depended inadequately on the officer’s
description of his training and experience, rather than on
692 State v. Barton
evidence of activity at defendant’s property that would tie
the stolen property to that place. We are not persuaded by
that argument.
Under ORS 133.545(6), an application for a search
warrant “shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending
to show that the objects of the search are in the places, or in
the possession of the individuals, to be searched.” We review
the trial court’s determination of probable cause supporting
a warrant for legal error, deferring to the trial court’s findings of historical fact if there is evidence in the record to
support them. State v. Vasquez-Villagomez, 346 Or 12, 23,
203 P3d 193 (2009).
Here, the facts recited in the affidavit were sufficient to provide probable cause that a search of defendant’s
property would disclose evidence of the thefts and the illegal mining operation. Eves had seen the camouflaged Honda
UTV at defendant’s property and had seen photographs of
defendant driving it to the mining site, loading it with items
from the BLM’s stolen UTV, and using some of the items
that had been stolen from the BLM site. The stolen items
were not at the mining site, suggesting that they were at
a different location. That evidence supported a reasonable
inference that the stolen items would probably be found at
the same location as the camouflaged Honda UTV. That was
evidence from which a reasonable person could infer that
the stolen items probably would be found on defendant’s
property. See State v. Anspach, 298 Or 375, 381,
692 P2d
602 (1984) (explaining that probable cause exists when the
facts would “lead a reasonable person to believe that seizable
things will probably be found in the location to be searched”).
And although, as defendant contends, the sergeant’s recitation of his training and experience could not provide the only
connection to defendant’s property, it did provide further
support for the inference. State v. Chamu-Hernandez,
229 Or
App 334, 341,
212 P3d 514, rev den,
347 Or 43 (2009) (“The
issuing court may fairly consider facts stated in an affidavit
that are derived from a police officer’s training and experience.”). The trial court did not err in concluding that the
affidavit for the warrant provided probable cause.
Cite as
341 Or App 689 (2025) 693
However, we agree with defendant that the warrant failed to satisfy the particularity requirement because
it was overbroad. A search warrant must “particularly
describ[e] the place to be searched, and the person or thing
to be seized.” Or Const, Art I, § 9; see also ORS 133.565(2)
(requiring a warrant to, among other things, describe with
particularity the places to be searched and the things to be
seized). “The 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.” State v. Reger, 277 Or App
81, 90,
372 P3d 26, rev den,
359 Or 847 (2016) (internal quotation marks, brackets, and ellipses omitted). Ultimately,
the objective of the particularity requirement is that “the
search be as precise as the circumstances allow and that
undue rummaging be avoided.” State v. Gaskill,
340 Or
App 459, 471, ___ P3d ___ (2025) (internal quotation marks
omitted).
The particularity analysis is informed by two
related, but distinct, concepts: specificity and overbreadth.
State v. Curry, 336 Or App 72, 81,
560 P3d 694 (2024).
Regarding specificity, “[a] warrant must be sufficiently specific in describing the items to be seized and examined that
the officers can, with reasonable effort ascertain those items
to a reasonable degree of certainty.” State v. Mansor,
363
Or 185, 212,
421 P3d 323 (2018) (internal quotation marks
omitted). Regarding overbreadth, “even if the warrant is
sufficiently specific, it must not authorize a search that is
‘broader than the supporting affidavit supplies probable
cause to justify.’ ”
Id. (quoting State v. Reid,
319 Or 65, 71,
872 P2d 416 (1994)).
In the instant case, the warrant authorized the executing officers “[t]o search for, and to seize any evidence of,
crimes including but not limited to, Theft in the First Degree,
Criminal Mischief in the First Degree, Possession of Stolen
Vehicle, Unlawful Cutting/Transporting Special Forest
Products and Criminal Trespass in the Second Degree.”
(Emphasis added.)
694 State v. Barton
On appeal, defendant argues even if the affidavit
and warrant provided probable cause to search for evidence
of the enumerated crimes, they did not supply probable cause
to search for evidence of additional crimes, and the warrant
command to search for “any evidence of, crimes including but
not limited to” the enumerated crimes gave the officers executing it “unbridled discretion” as to the things to be searched
for and seized, and was thus overbroad. The state responds
that there is no requirement that warrants list particular
crimes, and “if a warrant is not required to list a particular
crime at all—thus allowing law enforcement to search for evidence of any crime—it is difficult to understand how a warrant that allows law enforcement to ‘search for, and to seize
evidence of crimes including but not limited to’ is overbroad.”
We are not persuaded by the state’s argument. A
warrant that authorizes law enforcement to search for and
seize any evidence of any crime is the very definition of a general warrant. See State v. Carter, 342 Or 39, 43,
147 P3d 1151
(2006) (explaining that the historical motivation for the particularity requirement in Article I, section 9 “was a fear of
general warrants, giving the bearer an unlimited authority
to search and seize” (internal quotation marks omitted)). As
the state points out, there is no requirement that warrants
identify the crime or crimes being investigated. However, even
when a warrant does identify the crime, that does not rule out
that the warrant may be overbroad. See Mansor,
363 Or at 214
(rejecting “the state’s proposed rule that merely identifying
the crime under investigation provides sufficient particularity
to search the entire contents of a lawfully seized computer”).
Here, the warrant authorized the state to search for,
and to seize, “any evidence of … crimes including but not
limited to” the enumerated crimes, which means the state
was not limited to searching for evidence of the crimes being
investigated. Instead, the warrant authorized a search for
and seizure of any evidence of any crime. We have previously
determined that where a “warrant limited police to search
for particular types of evidence at a particular location in
connection with a specific set of alleged crimes, it was sufficiently particular.” Reger, 277 Or App at 92 (citing State
v. Rose,
264 Or App 95, 109,
330 P3d 680, rev den, 356 Or
Cite as
341 Or App 689 (2025) 695
400 (2014)). By doing so, “[t]he warrant did not provide police
with carte balance to begin ‘rummaging’ through [the]
defendant’s home for anything but those kinds of evidence in
connection to specific charges.” Reger,
277 Or App at 92. By
contrast, the warrant at issue here authorizes a broad search
for any evidence of crimes “including but not limited to” the
enumerated crimes, thereby creating a risk of “ ‘undue rummaging.’ ”
Id. at 91 (quoting State v. Massey,
40 Or App 211,
214,
594 P2d 1274, rev den,
289 Or 409 (1979)).
In Curry, 336 Or App at 88, we held that a search
category in a warrant authorizing a search for “[a]ny other
evidence” of the crime under investigation was not specific
enough to prevent “undue rummaging” by executing officers. More recently, in Gaskill,
340 Or App at 471-72, we held
that a warrant authorizing a search for evidence that “may
include, but is not limited to” 13 categories of evidence failed
to describe the evidence sought with sufficient specificity,
and therefore failed to satisfy the particularity requirement
of Article I, section 9, noting the “lack of specificity risked
undue rummaging by executing officers.” (Internal quotation marks omitted.)
In the instant case, our analysis of the particularity
requirement focuses on concerns about the warrant’s overbreadth rather than its lack of specificity. As noted above,
the warrant provides specific information about the stolen
items to be seized. Nevertheless, by authorizing a search
for any evidence of crimes including but not limited to the
crimes under investigation, the warrant in this case, like
the warrants in Curry and Gaskill, created a risk of “undue
rummaging.” Because it authorized an overbroad search,
the warrant failed to satisfy the particularity requirement
of Article I, section 9.
The trial court erred in ruling that the warrant satisfied the particularity requirement, and we reverse on that
ground. Because defendant entered conditional pleas, he has
the right to withdraw them if he so chooses. ORS 135.335(3).
If he does so, then there may be further litigation regarding
the scope of the evidence that should be suppressed.
Reversed and remanded.
