State v. Harris

                                       628

  Argued and submitted November 2, 2021, resubmitted January 25, order of
                   circuit court affirmed April 28, 2022


                       STATE OF OREGON,
                            Appellant,
                               v.
                   LANGSTON AMANI HARRIS,
                           Respondent.
                   (CC 20CR28186) (SC S068481)
                                    

     In the course of investigating a murder, the state obtained a search warrant to identify the person who had called the victim’s phone nine times around
the time of the murder. The warrant, however, sought 60 hours’ worth of cell
phone records from the caller’s phone number, later linked to defendant. The
state then relied on the evidence obtained through that search warrant to
obtain more search warrants directed at defendant’s phone numbers and online
accounts. Also during the investigation, an assistant district attorney applied for
and obtained wiretaps for multiple phone numbers allegedly used by defendant,
without indicating whether the elected district attorney was aware of the particular application. After defendant was indicted for murder and other crimes,
he moved to suppress the evidence obtained through the search warrants and
the wiretaps. The trial court granted the motions, and the state filed a direct
interlocutory appeal. Held: (1) The trial court correctly suppressed the evidence
obtained through the wiretaps because (a) federal law limits applications for
wiretaps to the “principal prosecuting attorney” of a state or county, which here
means the elected district attorney; (b) federal law does not allow delegation of
a district attorney’s authority to apply for wiretaps, at least without some indication that the district attorney had reviewed the wiretap application or personally approved it; and (c) federal law thus required suppression of the evidence
obtained through the improperly authorized wiretap application; and (2) the trial
court correctly suppressed the evidence obtained through the challenged search
warrants because (a) the initial warrant was overbroad and thus invalid, and
(b), once information obtained through the overbroad warrant was excised, the
subsequent warrant applications did not establish probable cause.
    The order of the circuit court is affirmed.



   On appeal from an order of the Washington County
Circuit Court under ORS 138.045(1)(d), ORS 138.045(2), and
ORAP 12.07.*
   Benjamin Gutman, Solicitor General, Salem, argued the
cause and filed the briefs for appellant. Also on the briefs
______________
   * Janelle F. Wipper, Judge.
Cite as 

 (2022)                                               629

were Ellen F. Rosenblum, Attorney General, and Jennifer
S. Lloyd, Assistant Attorney General.
  Kevin Sali, Kevin Sali LLC, Portland, argued the cause
and filed the brief for respondent. Also on the brief was John
Robb.
  Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.…
   FLYNN, J.
   The order of the circuit court is affirmed.




______________
    … Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
630                                           State v. Harris

        FLYNN, J.
         This case involves the state’s direct and interlocutory appeal of an omnibus pretrial order granting numerous
defense motions to suppress evidence that the state obtained
through wiretaps and search warrants. See ORS 138.045(1)(d)
(authorizing state to appeal from “[a]n order made prior to
trial suppressing evidence”); ORS 138.045(2) (specifying
that “the state shall take the appeal to the Supreme Court
if the defendant is charged with murder or aggravated murder”). The trial court ruled: (1) that the wiretaps violated
federal law because the applications did not indicate that
the elected district attorney personally was even aware of
the applications, and (2) that roughly two dozen search warrants for cell phone data and social media accounts were
invalid for multiple reasons, including that the warrants
were overbroad and that, after excising from later warrant applications all information derived from the invalid
earlier warrant(s), the state lacked probable cause to support the later warrants. We affirm those rulings of the trial
court.
                         I.   FACTS
        Defendant has been charged with first-degree and
second-degree murder, first-degree robbery, promoting
prostitution, and other crimes. In this pretrial posture, the
following facts are undisputed for purposes of this direct
appeal.
         The murder charges arise from the death of RBH,
who was shot outside of his apartment building in the early
morning hours of September 20, 2017. RBH had had an
argument with his wife the evening before and had left their
home to spend the night in his pickup truck. RBH’s wife
spoke to him about 3:00 a.m., while he was sitting in his truck
in the parking lot outside of their building. Officers were
called to the scene the next morning and found RBH on the
ground near his truck, with a gunshot wound to the head. It
appears that the shooting occurred at about 3:30 a.m., based
on the report of a neighbor who heard sounds that might
have been gunfire and saw a car driving away from where
the body was found.
Cite as 

 (2022)                                     631

        When officers arrived at the scene, they found two
cell phones on RBH’s body. Although his wife could identify
only one cell phone as belonging to RBH, officers eventually
determined that the second phone belonged to him as well.
With consent from RBH’s wife, police obtained a search
warrant for the call and text records for the second phone.
Through those records, officers identified a phone number,
-2494, that had called RBH nine times between 3:13 a.m.
and 3:21 a.m. on the morning of the murder. Four of the calls
were not completed, another four had gone to voicemail, and
the final call had been answered and had lasted over four
minutes.
         Based on that information, the state applied for
a search warrant for records of phone number -2494 from
the service provider, T-Mobile. The affidavit supporting the
application explained that the “aforementioned” facts gave
rise to probable cause “to believe that evidence of the crimes
of Murder (ORS 163.115) and Manslaughter in the First
Degree (ORS 163.118)” could be found in the records associated with that phone number because of the repeated calls
to [RBH’s] phone “minutes before witnesses reported hearing two popping sounds in the area of where [RBH’s] body
was eventually found.” The affidavit explained that
   “[t]he records are going to provide evidence of the crime of
   murder because the records will help identify people who
   may be able to provide witness information or details about
   what was happening or have information about the murder
   because the calls were so close in time to reports of ‘pops’
   by neighbors.”
The affidavit requested a warrant to obtain detailed records
for the period from 8:00 a.m. on September 19, 2017, through
8:00 p.m. on September 21, including “location data” for the
phone, “details of all voice, message, and data usages (incoming and outgoing),” and “all incoming and/or outgoing SMS
and/or MMS messages and related records.” The warrant
issued on September 22, 2017.
        Around the time that officers received records in
response to the September 22 warrant for phone number
-2494, which the state later linked to defendant, officers
learned from an analysis of RBH’s phone records that he
632                                           State v. Harris

had exchanged numerous text messages and phone calls
in the hour before his death with multiple phone numbers
that police linked to online advertisements for prostitution
services. One of these calls to RBH’s phone was made at
3:27 a.m., from a phone number linked to prostitution advertisements for a woman named Sterling-Clark.
        Relying in part on the additional information from
RBH’s phone and in part on records obtained in response
to the September 22 warrant, officers then sought and
obtained orders for the records of multiple additional phone
numbers. And those records, in turn, led to still other
search warrants. As relevant here, the state would eventually obtain more than twenty additional search warrants
directed against defendant based on the information developed from the September 22 warrant. Those additional warrants were primarily for phone numbers, but also included
warrants for online accounts, that were owned or used by
defendant.
         In addition, the state applied for and obtained orders
to intercept oral, electronic, and wire communications (wiretaps) for multiple phone numbers allegedly used by defendant, a process that is restricted under federal law. See 

 - 2520 (setting out when state and federal courts
may authorize the interception of wire, electronic, and oral
communications).
         The state’s theory of the case, which it expects the
evidence will support, is that defendant and Sterling-Clark
were part of a prostitution ring operating in Washington
County. On the night that RBH was murdered, he had
responded to an online ad for prostitution services and had
arranged to meet Sterling-Clark. Defendant, who helped
arrange the encounter, drove Sterling-Clark to meet RBH.
At some point, defendant and Sterling-Clark decided to rob
RBH, who had texted them a picture of a large amount of
cash. In the course of the robbery, defendant shot and killed
RBH. Later, defendant tried to intimidate Sterling-Clark
into concealing his role in the murder.
        After being indicted, defendant filed numerous
pretrial motions, including motions to suppress evidence
intercepted through the wiretaps and obtained through
Cite as 

 (2022)                                                   633

search warrants for cell phone records, beginning with the
September 22 warrant. The trial court granted some of
defendant’s motions to suppress, and the state filed this pretrial appeal pursuant to ORS 138.045(1)(d), (2).
                            II. DISCUSSION
         As described at the outset, the state divides its challenges to the pretrial rulings into two assignments of error.
The first assignment of error challenges the grant of defendant’s motion to suppress evidence obtained through the
wiretap orders on the basis that the applications failed to
satisfy the requirements of federal law. The second assignment of error challenges the court’s combined ruling granting two dozen motions to suppress evidence derived from
search warrants for cell phone records on the basis that
each warrant was invalid for multiple alternative reasons.
As the facts are undisputed, we review the trial court’s rulings on the motions to suppress for legal error. See State v.
Turnidge (S059155), 

, 

 (2016).
And we conclude that the trial court did not err.
A.    Wiretap Evidence
     1.    Motion to suppress and trial court order
         Defendant sought to suppress the evidence obtained
as a result of the four wiretap orders. Federal law—enacted
as Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 (Wiretap Act), Pub L 90-351, 82 Stat 197 (1968)—
restricts in several ways the ability of both state and federal
government officials to obtain judicial wiretap orders. Most
pertinent to this appeal, the act prohibits all courts, federal
and state, from admitting any wiretap evidence obtained in
violation of the act in any trial, hearing, or other similar
proceeding. 

; see also 

 § 2518(10)(a) (setting
out procedures for suppression).1
       The relevant restriction on wiretaps is set out
in 

(2), which provides that wiretap
     1
       The act also specifies that the permissible use of a wiretap is limited to
developing evidence of certain serious offenses, see 

 (listing
offenses); that the application for a wiretap must contain prescribed information,

 § 2518(1); and the court must make certain findings before granting the order,
id. § 2518(3). None of those requirements is in dispute here.
634                                           State v. Harris

applications at the state level must be made by “[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such
attorney is authorized by a statute of that State[.]”
         In this case, all of the challenged applications for
wiretaps were made by a deputy district attorney. The applications stated that the deputy district attorney was
   “authorized by District Attorney Robert Hermann for
   Washington County, Oregon to make this application pursuant to ORS 133.724(1)(a)[.]”
The affidavits provided no further information about the
authorization.
         In his motion to suppress, defendant argued that
the “principal prosecuting attorney” under section 2516(2)
is limited to the Attorney General or an elected district
attorney and that the district attorney cannot delegate the
authority to make wiretap applications. Defendant recognized that Oregon law purports to authorize district attorneys to delegate to a deputy their authority to apply for wiretaps. See ORS 133.724(1) (permitting wiretap applications
by “the individual who is the district attorney or a deputy
district attorney authorized by the district attorney”). But
he contended that federal law precludes that delegation of
the authority to seek wiretaps. Because the wiretap applications in this case were submitted by a deputy district attorney, without any indication that the elected district attorney
even had participated in the process, defendant contended
that the wiretap orders were issued in violation of federal
law and that the trial court should suppress the wiretap evidence as “unlawfully intercepted.” See 

(10)(a)(i)
(so providing).
         The state did not dispute that the phrase “principal
prosecuting attorney” in the federal act refers to the district
attorney. It contended, however, that the federal law does not
preclude Oregon from permitting district attorneys to delegate their authority to apply for wiretaps. It also argued in
the alternative that, regardless of the validity of the wiretap
applications, the evidence should not be suppressed because
the state had acted in good faith.
Cite as 

 (2022)                                                   635

          The trial court rejected the state’s argument and
suppressed the wiretap evidence. It concluded that states
are prohibited from creating less restrictive wiretapping
requirements than those in section 2516(2). And it concluded that the Oregon statute authorizing delegation, ORS
133.724(1), is less restrictive because it allows delegation to
deputy district attorneys to apply for wiretaps. Because in
this case “the official responsive to the political process did
not indicate that he or she was aware of the wiretap application[s],” the court held that the wiretaps violated federal law.
The court concluded that no “good faith exception” applies
and that the evidence obtained in response to the wiretaps
must be suppressed.
     2. Delegation by “principal prosecuting attorney”
         The issue regarding the wiretap evidence is entirely
one of federal law.2 To determine whether section 2516(2) permits a “principal prosecuting attorney” to delegate authority
to a subordinate, we follow the methodology prescribed by
the federal courts. “Federal courts generally determine the
meaning of a statute by examining its text and structure
and, if necessary, its legislative history.” Corp. of Presiding
Bishop v. City of West Linn, 

, 

(2005); see also City of Eugene v. Comcast of Oregon II, Inc.,

, 

 (2016) (same).
          The text of section 2516(2) authorizes only certain
officials to seek court-authorized wiretaps. Specifically, that
statute provides that “[t]he principal prosecuting attorney
of any State, or the principal prosecuting attorney of any
political subdivision thereof,” may apply “to a State court
judge of competent jurisdiction for an order authorizing or
approving the interception of wire, oral, or electronic communications,” if also authorized to do so “by a statute of that
State.”

    2
      The parties do not appear to dispute that ORS 133.724(1) permits Oregon
district attorneys to delegate their authority to submit wiretap applications. The
state recognizes, however, that the dispositive question is whether federal law
prohibits that delegation of authority. See, e.g., Villa v. Maricopa Cty., 

 (9th Cir 2017), cert den, ___ US ___, 

 (2018) (citing
numerous cases recognizing proposition that federal wiretapping law “sets forth
minimum procedural requirements for state and federal orders authorizing wiretapping” and preempts less restrictive state requirements).
636                                           State v. Harris

         The state does not dispute that, in Oregon, the
“principal prosecuting attorney” of a county is the district
attorney and not deputy district attorneys. The state nevertheless asserts that, despite textual use of the term “principal prosecuting attorney,” the statute is “silent” on whether
that officer may delegate authority to apply for a wiretap
warrant. The state urges us to understand that “silence” as
implicit authorization for the delegation.
         We are not convinced. Section 2516(2) sets specific
limitations on the officials who are authorized to apply for
wiretaps. It does not allow any prosecuting attorney to apply,
but only a “principal prosecuting attorney.” 

 Even then,
applications by that person must also be expressly authorized by state statute. See 

 (application must be made by
an “attorney … authorized by a statute of that State to
make [that] application”). Although the statute may not prohibit delegation in express terms, its specificity implies that
prohibition.
         Moreover, important context for the meaning of
section 2516(2) can be found in the related provision that
specifies the federal officials who are authorized to make
application for wiretaps, section 2516(1), which the Supreme
Court has construed as precluding the kind of delegation
that the state proposes here. See United States v. Giordano,

, 

, 

 (1974). Like section 2516(2), section 2516(1) identifies specific officers who
are authorized to apply for a wiretap:
      “The Attorney General, Deputy Attorney General,
   Associate Attorney General, or any Assistant Attorney
   General, any acting Assistant Attorney General, or any
   Deputy Assistant Attorney General or acting Deputy
   Assistant Attorney General in the Criminal Division or
   National Security Division specially designated by the
   Attorney General ….”
(Footnote omitted.) Both provisions were adopted as part of
the Omnibus Crime Control and Safe Streets Act of 1968.
See Giordano, 

 (so noting). The Court in
Giordano concluded that Congress intended section 2516(1)
to be a limitation on the power to authorize federal wiretap
applications. Giordano, 

.
Cite as 

 (2022)                                                 637

        The United States in Giordano had argued that the
Attorney General could permissibly delegate authority to an
executive assistant to approve wiretap applications. Id. at
512-13. It noted that there were federal statutes expressly
vesting all functions of the Department with the Attorney
General, who was then authorized to delegate that authority
to others. Id. at 513.3
         But the Court rejected that argument. Id. at 523.
Although acknowledging that section 2516(1) did not
expressly prohibit delegation, the Court held that the provision, “fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself
and to any Assistant Attorney General he might designate.”
Giordano, 

.
         The Court explained that the overall structure of
the act showed a congressional intent to limit when wiretaps would be permitted at all. 

. Conceding
that the statute “is not as clear in some respects as it might
be,” the Court concluded that it was “at once apparent” that
Congress intended to “impose[ ] important preconditions to
obtaining any intercept authority at all.” 

. “[T]he
clear intent [was] to make doubly sure that the statutory
authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and
oral communications.” 

 As regards the officers authorized
to apply, the Court explained that “[t]he mature judgment
of a particular, responsible Department of Justice official is
interposed as a critical precondition to any judicial order.”

 (emphases added).
        The Court also examined the extensive legislative
history behind the act, which dated back to an original proposal in 1961 that would have allowed the United States
Attorney General, as well as the Executive Assistant and
any United States Attorney, to apply for a wiretap. 

 at
     3
       The Court cited 

 (“All functions of other officers of
the Department of Justice and all functions of agencies and employees of the
Department of Justice are vested in the Attorney General [subject to identified
exceptions].”) and 510 (“The Attorney General may from time to time make such
provisions as he considers appropriate authorizing the performance by any other
officer, employee, or agency of the Department of Justice of any function of the
Attorney General.”). Giordano, 

.
638                                           State v. Harris

516-22. At that time, the Department of Justice had itself
requested “that the authority to approve applications be substantially narrowed so that the Attorney General could delegate his authority only to an Assistant Attorney General.”

. The drafter of the operative text later testified
that “ ‘I would not want this equipment used without high
level responsible officials passing on it.’ ” 

 (quoting Hearings on Anti-Crime Program before Subcommittee
No. 5 of the House Committee on the Judiciary, 90th Cong,
1st Sess, 1379 (1967) (testimony of Professor G. Robert
Blakey)).
         The Court also reviewed the relevant sections of the
Senate report regarding the act that created section 2516(1).
Giordano, 

 (discussing S Rep 90-1097, 90th
Cong, 2d Sess, 96-97, to which we will turn shortly). The
Court concluded that that report was “particularly significant in that it not only recognizes that the authority to apply
for court orders is to be narrowly confined but also declares
that it is to be limited to those responsive to the political
process.” 

         The Court’s conclusion—that Congress intended
section 2516(1) to circumscribe the particular federal officials who have the authority to apply for wiretaps—provides
significant context for what the same Congress intended
to convey by specifying particular state officials in section 2516(2). It supports our conclusion, based on the text
of section 2516(2), that Congress intended paragraph (2)
to circumscribe the particular state officials who have the
authority to apply for wiretaps.
         The state contends, however, that a later congressional enactment provides context pointing to a different
interpretation of section 2516(2). The provision that the
state identifies was added by the 1970 Congress to the Code
for the District of Columbia, the codification of general and
permanent laws relating to the District. The state understands that 1970 law to expressly permit the United States
Attorney for the District of Columbia to delegate authority to
apply for a wiretap to assistants and to “investigative or law
enforcement officer[s].” See Pub L 91-358, § 210(a), 84 Stat
Cite as 

 (2022)                                639

473, 616-17, 620 (1970) (codified at DC Code §§ 23-541(11),
23-546(a)). Notably, the District of Columbia is defined as
a “state” for purposes of 

(2). 

(3). Thus, according to the state, the 1970 Congress’s
decision to allow delegation of the United States Attorney’s
wiretapping authority in the District of Columbia suggests
that the 1968 Congress intended to permit similar delegation of the wiretapping authority by principal prosecuting
attorneys in the 50 states.
          The state’s proposal, however, extends beyond the
inferences that reasonably may be drawn from the District
of Columbia statute. At least with respect to the wiretapping provisions, there is no basis for inferring that the
intent of the 1970 Congress can be imputed to the 1968
Congress. As defendant emphasizes, the composition of the
two Congresses was different. Moreover, the drafters of
the 1970 law identified the delegation provision as one that
would “supersede” provisions of the 1968 wiretapping law
“in cases of irreconcilable conflict.” Pub L 91-358, § 210(a),
84 Stat 627 (DC Code § 23-556(b)). At least one member
of Congress described the 1970 legislation as containing
“broad and general wiretap authority going far beyond the
limited authority of Title III of the 1968 Omnibus Crime
Bill[.]” Crime in the National Capital: Hearings on S. 2601
Before the S Comm on the District of Columbia, 91st Cong
2077 (Mar 23 and Apr 2, 1970) (statement of Sen Ervin).
         The state also points to one sentence in the senate
report for the 1968 Act, which refers to “[t]he issue of delegation” being “a question of State law.” S Rep 90-1097, 90th
Cong, 2d Sess, reprinted in 1968 USCCAN 2112, 2187. The
broader context of the report’s discussion of section 2516(2),
however, significantly undermines the weight that the state
ascribes to the isolated sentence. The report’s discussion of
section 2516(2) repeatedly emphasizes that the intent of the
proposed provision was to centralize authority and restrict
who among state officials may apply for wiretaps. The relevant paragraph of the report explains that “[t]he intent of
the proposed provision is to provide for the centralization of
policy relating to statewide law enforcement in the area of
the use of electronic surveillance in the chief prosecuting
640                                             State v. Harris

officer of the State.” Id. In those states where the absence of
an attorney general (or equivalent) makes it necessary for
“policymaking” to “move down to the next level of government,” “[t]he intent of the proposed provision is to centralize
areawide law enforcement policy in [that officer].” Id. And
the paragraph concludes that, “[w]here there are both an
attorney general and a district attorney, either could authorize applications,” but that “[t]he proposed provision does not
envision a further breakdown.” Id.
          Those statements of intent to centralize and limit
the authority of state officials to pursue wiretaps are similar
to the statements of intent to centralize and limit the authority of federal officials that the Court in Giordano considered
to be so persuasive. See Giordano, 

 (discussing
S Rep 90-1097, 90th Cong, 2d Sess, 96-97). The statements
of intent persuaded the Court in Giordano that section
2516(1) prohibits the delegation of wiretapping authority
beyond the specific officials identified in that section, despite
a federal statute that authorized the Attorney General to
delegate various other duties. 

. The Court’s
reasoning persuades us that—just as Congress did not
intend that section 2516(1) would permit delegation beyond
the specified federal officers—Congress did not intend that
section 2516(2) would permit delegation beyond the specified state officials. Consistent with that restriction, Oregon
law can authorize “the principal prosecuting attorney” of a
political subdivision of the state “to make application,” but
that is the only delegation of authority that Congress has
permitted.
         That conclusion should mean that the applications
by a deputy district attorney here were not authorized
applications for wiretaps. But the state urges us to follow
the holdings of some courts from other states and federal
districts that have upheld wiretaps despite something less
than literal compliance with the application limits of section
2516(2). See, e.g., State v. Verdugo, 180 Ariz 180, 183, 

 (Ariz Ct App 1993) (upholding state authorization statute that court concluded “substantially complies”
with federal wiretapping statute). The state acknowledges
that those decisions are not binding on this court and that
the issue is one on which jurisdictions “have not reached
Cite as 

 (2022)                                                     641

a uniform interpretation of section 2516(2).”4 Nevertheless,
the state similarly urges us to allow wiretap applications
that comply with the purpose of section 2516(2).
          What the state misses in proposing a focus on congressional intent is that, as we have already explained,
Congress’s purpose in narrowly circumscribing the state
and federal officials who may apply for wiretaps was to
centralize and limit the exercise of that authority. Even
the purpose-driven decisions most favorable to the state do
not stray as far from the requirements of section 2516(2)
as the state would have us stray; those courts still have
required some active involvement on the part of the “principal prosecuting attorney”—by authorizing the particular
application, reviewing the merits of the particular application, or both. See Verdugo, 180 Ariz at 182-84, 

 (upholding statute that permitted applications by
“ ‘such prosecuting attorneys as [the attorney general or the
county attorney] may designate in writing,’ ” and noting that
applications had been supported by affidavit of the county
attorney); State v. Marine, 

 (Del 1983)
(wiretapping application that was personally authorized by
state Attorney General by phone—but signed by a deputy—
satisfied the legislative purpose, “the centralization of authorization authority in the Attorney General”); Commonwealth
v. Vitello, 367 Mass 224, 231-32, 257-58, 

, 825-
26, 839 (1975) (concluding that special designation under
state statute comported with section 2516(2) as long as

     4
       Some courts have interpreted section 2516(2) as strictly limiting authority
to apply for wiretaps to the “principal prosecuting attorney.” See, e.g., State v.
Bruce, 295 Kan 1036, 1044, 

 (2012) (holding that section
2516(2) “allows no such delegation of wiretap order applications by ‘the principal
prosecuting attorney of any State’ ”); State v. Frink, 296 Minn 57, 75, 

 (1973) (rejecting conclusion that assistant county attorney could apply
for wiretap, despite state statute generally authorizing assistant county attorney
to exercise authority of county attorney; neither state nor federal statute “intends
that at the county level anyone other than the ‘principal prosecuting attorney’
… shall have the power to initiate an electronic surveillance”). Others employ
a “substantial compliance” standard that permits only slight deviation from the
federal requirements. See Villa, 

 (wiretap application failed
to satisfy Arizona’s “substantial compliance” standard, although application had
been expressly authorized by the Maricopa County Attorney, because the application was made by a deputy and did not state that the County Attorney “was personally familiar with any evidence providing probable cause that would justify a
wiretap on any of those numbers or persons”).
642                                                           State v. Harris

“the district attorney … [gave] full and fair review of the
grounds asserted for seeking a wiretap warrant,” did so “on
a case by case basis only,” and the authority was “specifically
granted in writing”); State v. Peterson, 

, 24 n 1
(Utah Ct App 1992) (“Here, the Utah County Attorney prepared a document specifically authorizing Deputy County
Attorney Taylor to apply for the wiretap order [of a particular phone], thus fulfilling the requirements of both the federal and state acts.”).5
          In this case, we need not decide whether to reject
the reasoning that has motivated other courts to conclude
that “substantial compliance” with the application requirements of the federal wiretap act is enough, because the
wiretap applications in this case fall below even the standards set in the decisions that the state views as persuasive. The most that is shown here regarding involvement of
the “principal prosecuting attorney” in the wiretap applications at issue is a generic claim that the Washington County
District Attorney had delegated his authority to file wiretap
applications. As far as the applications show, the district
attorney could have given a blanket oral authorization to
all assistant district attorneys to file wiretap applications in
any case where they see fit. Indeed, the state affirmatively
argues that “it is irrelevant whether the district attorney
was specifically aware of any particular wiretap application.”
That is far too similar to the blanket delegation that the
Court in Giordano refused to authorize. See United States v.
Giordano, 469 F2d 522, 524 (4th Cir 1972), aff’d, 

,

, 

 (1974) (referring to “the ‘Alice
in Wonderland’ world of [United States] Justice Department
wiretap applications,” in which “neither [Attorney General]
Mitchell nor [Assistant Attorney General] Wilson had
heard of the Giordano application or signed the letters
    5
      The state also cites People v. Vespucci, 

, 

, 

 (1990), in which the court took a slightly different approach. There, the
state statute had authorized wiretap applications by “ ‘the deputy attorney general in charge of the organized crime task force,’ ” and the court reasoned that the
nature of the state’s Organized Crime Task Force made the director a “principal
prosecuting attorney” for purposes of section 2516(2). Vespucci, 

-
40, 

, 

 (citation and emphasis omitted).
Here, the state has not contended that a deputy district attorney can be considered a “principal prosecuting attorney,” and the state identifies no court that has
interpreted the term that broadly.
Cite as 

 (2022)                                                     643

bearing their respective initials and signature”).6 None of
the cases identified by the state appears to have approved
such open-ended delegation, and it is beyond what even a
“substantial compliance” standard would support. The trial
court correctly held that the wiretaps in this case were
unlawful.
     3.    Whether there is a “good faith” exception to suppression
         The state argues that, regardless of whether the
wiretaps were lawful, the trial court erred in suppressing
the evidence that the state obtained through those wiretaps.
It asks us to conclude that law enforcement had obtained the
evidence in good faith reliance on the wiretap warrants and,
on that basis, that the evidence should not be suppressed.
We reject that argument.
         The “good faith” principle on which the state relies
is a court-created exception to the court-created rule that
evidence obtained in violation of the Fourth Amendment
should be excluded. The “good faith” doctrine was first recognized in United States v. Leon, 

, 

,

 (1984), regarding an invalid search warrant.
The Court there held “that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated
search warrant cannot justify the substantial costs of exclusion.” 

. The Court premised its creation of a good
faith exception on the fact that “[t]he Fourth Amendment
contains no provision expressly precluding the use of evidence obtained in violation of its commands.” 

.
It reasoned that “[t]he wrong condemned by the [Fourth]
Amendment is fully accomplished by the unlawful search or
seizure itself, and the exclusionary rule is neither intended
     6
       As the First Circuit stated in United States v. Smith, 726 F2d 852, 858 (1st
Cir 1984), cert den, 

 (1984), such a blanket delegation would “frustrat[e]
the twin congressional objectives of policy uniformity and political accountability, and would constitute an abdication of responsibility.” See also Bruce, 295 Kan
at 1036-37, 1043, 

 (state attorney general had given assistant
attorney general blanket delegation of all authority to make wiretap applications
in all cases; court could not “perceive Congress intended that at any given time
the number of persons in Kansas who may obtain a wiretap order is limited only
by the number of assistant attorneys general and county attorneys in existence
at the particular time” (internal quotation marks and citation omitted)).
644                                                State v. Harris

nor able to cure the invasion of the defendant’s rights which
he has already suffered.” 

 (internal quotation marks and
citations omitted).
          There is no basis for applying the doctrine in the
context of a statute that specifically provides for the suppression and exclusion of evidence intercepted through an
unlawful wiretap. As noted above, suppression is required
by two different provisions of the federal wiretap act. The
first is section 2515, which provides, in part:
      “Whenever any wire or oral communication has been
   intercepted, no part of the contents of such communication
   and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before
   any court … of the United States, a State, or a political
   subdivision thereof if the disclosure of that information
   would be in violation of this chapter.”

The second is section 2518(10)(a), which provides, in part:
       “Any aggrieved person in any trial, hearing, or proceeding in or before any court … of the United States, a State,
   or a political subdivision thereof, may move to suppress the
   contents of any wire or oral communication intercepted
   pursuant to this chapter, or evidence derived therefrom, on
   the grounds that—
      “(i) the communication was unlawfully intercepted[.]”

In addition to those suppression provisions, the law prohibits the intentional disclosure or use of the content of intercepted communications, if the person knows or has reason
to know that they were unlawfully intercepted. 

(1)(c), (d).
         The Court in Giordano emphasized that “ ‘unlawfully intercepted’ ” is “not limited to constitutional violations,” and it concluded that “Congress intended to require
suppression where there is failure to satisfy any of those
statutory requirements that directly and substantially
implement the congressional intention to limit the use of
intercept procedures to those situations clearly calling
for the employment of this extraordinary investigative
device.” 

 (quoting 

(10)(a)(i)).
Cite as 

 (2022)                                 645

The Court also held that, where there is a failure to satisfy
the requirement that only the named officials have authority to apply for a wiretap, that failure requires suppression:
   “We are confident that the provision for pre-application
   approval was intended to play a central role in the statutory scheme and that suppression must follow when it is
   shown that this statutory requirement has been ignored.”

Id. at 528.
         Although Giordano predates the Court’s adoption of
a “good faith” exception to the Fourth Amendment exclusionary rule, Giordano remains controlling precedent on
the question of whether evidence intercepted through an
unlawful wiretap must be suppressed. Moreover, the Court
has since reiterated Giordano’s holding, albeit in a different
context. Dahda v. United States, ___ US ___, ___, 

, 

 (2018). Whereas Giordano had
involved suppression due to a defective wiretap application
under section 2518(10)(a)(i), in Dahda, the Court addressed
suppression under section 2518(10)(a)(ii), which provides
for suppression of evidence intercepted through a wiretap
order that is “insufficient on its face.” Dahda, ___ US at ___,
138 S Ct at 1499-1500. Despite recognizing that the suppression requirement under subparagraph (ii) was less rigid
than that required for an unlawful application under subparagraph (i), the Court reiterated Giordano’s holding that
suppression under section 2518(10)(a)(i) was required when
“the Government’s use of a wiretap … violates a statutory
provision that reflects Congress’ core concerns.” Dahda, ___
US at ___, 138 S Ct at 1498-99.
         In summary: We agree with the trial court that
the wiretap applications here were not made by an authorized applicant under section 2516(2), and the wiretap
orders were, thus, invalid. Given that proper authorization
was a core concern of Congress in enacting the federal act
and that Congress expressly provided for exclusion of evidence intercepted through an unauthorized application, the
trial court correctly granted defendant’s motion to suppress
the evidence as “unlawfully intercepted” under section
2518(10)(a)(i).
646                                                       State v. Harris

B.    Search Warrants
      1. Motions to suppress and trial court order
         The state’s second assignment of error challenges
the court’s consolidated ruling that granted “Defense
Motions 104, 107 - 129,” all of which sought suppression of
evidence obtained from the search warrants for cell phone
records. Defendant’s motions separately challenged the
validity of 24 different search warrants but raised arguments that were common to all.
         The earliest warrant that defendant challenged
was the September 22 warrant for records related to the
-2494 phone number (Defense Motion 104).7 He argued that
the affidavit in support of that warrant failed to establish
probable cause and, alternatively, that the warrant lacked
specificity and was overbroad. Because of those defects,
defendant contended, evidence obtained through the warrant must be excluded from trial and must be stricken from
all subsequent warrant applications before the court analyzed defendant’s challenges to those later warrants. In his
separate motions challenging the later warrants, defendant
argued that the affidavits in support failed to establish
probable cause, especially once the court struck the evidence
that had been unlawfully obtained through the prior warrants. He also argued that the later warrants themselves
lacked specificity and were overbroad.
         The state filed a consolidated response to defendant’s motions to suppress the evidence obtained through
the cell phone search warrants (“Omnibus Consolidated
Responses to Defense Motions #104 - 129”). The response did
not specifically address defendant’s motion 104 regarding
the September 22 warrant; it instead asserted generically
that all of the search warrants were based on probable cause
and were sufficiently specific and not overbroad.
        The trial court agreed with defendant and granted
the motions to suppress cell phone records. In its written order, the court addressed defendant’s “Motions 104,
  7
    The earliest warrant that the state obtained was for the records related to
RBH’s cell phone. Defendant has not challenged that warrant.
Cite as 

 (2022)                                                   647

107 - 129” under a single heading in which it both described
one warrant specifically and ruled on the challenges that
were common to all warrants.8 The court specifically quoted
text from the September 22 warrant but noted that the
information requested in the other warrants was “substantively the same throughout.” The court concluded that each
of the warrants amounted to a “general warrant,” was “overbroad,” and was not supported by “particular facts to support anything more than a suspicion that evidence of the
suspected crime(s) would result.” The court also specified
that its probable cause rulings with respect to later warrants had been based on an evaluation of the affidavits after
striking evidence obtained from earlier invalid warrants:
    “Finally, to the extent that affidavits rely on evidence
    obtained from earlier search warrants that have been suppressed, the court struck that evidence from subsequent
    affidavits and concludes there is no probable cause to support the warrant.”
On appeal, the state argues that all of the warrants were
supported by probable cause and were sufficiently specific
and that none of the warrants was overbroad.
     2. September 22 warrant
         We begin with the trial court’s ruling that the
September 22 warrant for records related to the -2494 phone
number was invalid and that the evidence obtained must be
suppressed and stricken from all later affidavits. Because
the trial court struck that information from later search
warrant applications and then concluded that the resulting
warrants lacked probable cause, and because the later warrants all relied to some extent on evidence obtained from the
September 22 warrant, the fall of that warrant was effectively the domino that caused the rest of the chain to fall.9
    8
      The trial court also granted defendant’s motions to suppress number 105
and 106, but on a different basis, and that ruling is not before us on appeal.
    9
      The state asserts in its reply brief that it “does not understand the trial
court to have suppressed any evidence obtained from” the September 22 warrant. The state points to a comment in a different trial court ruling that, “after
striking the information suppressed from prior search warrants what remains is
the evidence from the 1st search warrant,” but the “1st search warrant” in this
case was the unchallenged warrant for records of RBH’s cell phone. Although the
“1st search warrant” reference might have been ambiguous in the abstract, the
648                                                          State v. Harris

         As described above, the affidavit in support of that
warrant described the two cell phones on the victim’s body
and recited that one of those phones had been called repeatedly by phone number -2494 over a period of eight minutes
close to the time of the murder: four calls that did not connect, four calls that went to voicemail, and a final call that
connected and lasted for four minutes. The final call from
phone number -2494 had connected to the victim’s phone at
approximately the same time that a witness had reported
hearing “popping sounds” near where the victim’s body was
found. The affidavit asserted that those facts showed probable cause to believe that records for phone number -2494
“will help identify people who may be able to provide witness
information or details about what was happening or have
information about the murder.” And the affiant asked the
court to issue a search warrant to obtain the records for that
phone number.
         The first part of the resulting search warrant was
consistent with the stated probable cause: that is, it directed
T-Mobile to provide information relevant to who owned the
phone (e.g., subscriber’s name, address, date of birth). The
warrant went on, however, to request the production of an
extensive amount of additional information regarding the
-2494 number. For a 60-hour period surrounding the estimated time of the murder—“from 8:00 a.m. (Pacific Coast
Time) September 19th, 2017 through 8:00 p.m. (Pacific
Coast Time) September 21[st], 2017”—the warrant directed
T-Mobile to produce “complete call detail records” of every
phone call and text message sent or received by -2494,
“including, but not limited to, dates and times of use, duration of use, and the destination and origination numbers”;
details of all “data usages” by -2494 (including the addresses
for every website visited); and all “location data including
any and all cell site data and GPS location information.” As
particularly relevant here, the warrant required T-Mobile to
produce the content of defendant’s communications:
court’s written order expressly grants defendant’s motion 104, and defendant’s
motion 104 was directed solely at suppressing the evidence obtained through the
September 22 warrant. Indeed, the court’s explanation in that ruling for why the
warrants were defective quotes the text of the September 22 warrant and simply
describes the later warrants as comparable. Thus, it is clear to us that the court
suppressed the evidence obtained from the September 22 warrant.
Cite as 

 (2022)                                      649

   “Any and all incoming and/or outgoing SMS and/or MMS
   messages and related records from 8:00 a.m. (Pacific Coast
   Time) September 19th, 2017 through 8:00 p.m. (Pacific
   Coast Time) September 21[st], 2017; including all metadata such as date, time, destination phone (or IP) number
   and origination phone (or IP) number, and geotags (or geographical coordinates)[.]”

         The trial court granted suppression of the material
obtained through the September 22 warrant under Article I,
section 9, of the Oregon Constitution. That section provides:
       “No law shall violate the right of the people to be secure
   in their persons, houses, papers, and effects, against unreasonable search, or seizure; and 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.”

This court recently explained that Article I, section 9,
imposes an “objective test of whether the government’s conduct would significantly impair an individual’s interest in
freedom from scrutiny, i.e., his privacy.” State v. Mansor,

, 

 (2018) (internal quotation
marks omitted). The obligations imposed by Article I, section 9, “must be read in light of the ever-expanding capacity
of individuals and the government to gather information by
technological means,” and accordingly it “applies to every
possible form of invasion—physical, electronic, technological, and the like.” 

 (internal quotation marks
omitted).
         The standard for whether a warrant is issued “upon
probable cause,” Or Const, Art I, § 9, is whether the state has
established “an objectively reasonable belief that seizable
things will probably be found in the location to be searched,”
State v. Foster, 

, 

 (2011). “The
test is one of probability, which requires more than mere
suspicion or a mere possibility.” 

 In evaluating probable
cause on appeal, we ask whether a neutral magistrate could
conclude, based on the facts in the supporting affidavit and
the reasonable inferences from those facts, whether there
was probable cause. State v. Castilleja, 

, 

 (2008).
650                                              State v. Harris

           Although the trial court granted defendant’s motion
with respect to the September 22 warrant on multiple, alternative bases, the state has never contended that suppression
remedy would be different if only one of those bases invalidated the warrant. Thus, it is enough for purposes of this
appeal to address only one: the ruling that the warrant was
“overbroad.” Overbreadth is an aspect of the requirement in
Article I, section 9, that warrants issue only “upon probable cause, … and particularly describing the place to be
searched, and the person or thing to be seized.” See Mansor,

 (emphasizing that the particularity requirement is informed by the “related, but distinct, concepts” of
specificity and overbreadth). The constitutional requirement means that, “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.” 

(internal quotation marks omitted); see Wayne R. LaFave,
2 Search and Seizure § 4.6(a), 752 (6th ed 2020) (“[A]n otherwise unobjectionable description of the objects to be seized
is defective if it is broader than can be justified by the probable cause upon which the warrant is based.”). The probable
cause shown by the supporting affidavits, thus, constrains
the scope of the lawful search. See State v. Blackburn/
Barber, 

, 

 (1973) (explaining that,
if the warrant “makes possible the invasion of [an] interest
in privacy without the foundation of probable cause for the
search, the warrant is too broad and therefore constitutionally defective”).
        In this case, the affidavit in support of the
September 22 warrant set out precisely the state’s asserted
probable cause: that the caller was a witness whom the state
needed to identify:
   “The records are going to provide evidence of the crime of
   murder because the records will help identify people who
   may be able to provide witness information or details about
   what was happening or have information about the murder
   because the calls were so close in time to reports of ‘pops’
   by neighbors.”
        The asserted probable cause—that the person (or
people) who called from phone number -2494, at approximately the time that shots might have been fired, “may
Cite as 

 (2022)                                  651

be able to provide” information or details relevant to the
murder—might support a search of records that would identify the person who made those calls. But the state offers
no explanation for how the asserted probable cause justifies
a search of the account holder’s entire record of cell phone
calls, text messages, internet usage, and locations for a
period of 60 hours. Nor can we identify a basis to conclude
that the invasion of the account-holder’s privacy interest in
that information is supported by “the foundation of probable
cause for the search.” See Blackburn/Barber, 

.
Thus, we agree with the trial court that the search authorized by the September 22 warrant was “broader than the
supporting affidavit supplies probable cause to justify.” See
Mansor, 

 (internal quotation marks omitted).
         The state also asserts on appeal that the affidavit
in support of the September 22 warrant showed probable
cause for a reasonable magistrate to conclude that the user
of phone -2494 was “involved in the homicide.” Among the
multiple impediments to that argument is that the premise
is not sound. The fact that someone repeatedly tried to reach
the victim, and ultimately connected for a short phone conversation, shortly before the victim was shot does not make
it probable that the caller was involved in the shooting. And
the state does not explain how that evidence establishes an
objectively reasonable probability that the caller was involved
in the murder. At best, that might be a possible explanation
for the calls; but possibility is not enough. See Foster, 

 (observing that “probable cause is harder to establish based on observations” that would be “equally or more
consistent with innocent circumstances”); State v. Carter/
Grant, 

, 

 (1993) (“Probable cause is
necessary to support a warrant, not merely one possibility,
among many.”).
       We therefore agree with the trial court: The
September 22 warrant was overbroad.
    3. Partial suppression as remedy for September 22
       warrant
       As a form of alternative argument, the state contends that some of the evidence obtained through the
unlawful search warrant should not have been suppressed
652                                           State v. Harris

because defendant lacked a protected privacy interest in
at least some of the “third-party” records that the state
obtained. According to the state, defendant had a protected
privacy interest only in some location data and in the contents of messages on his account. Under that theory, the
remaining records could have been lawfully obtained from
the cell phone service without a warrant and, thus, should
not have been suppressed. As pertinent to our analysis of
the September 22 warrant, the state’s theory of partial
suppression—limited to the evidence in which defendant had
a protected privacy interest—would require the trial court
to reevaluate which facts must be excised from the later
warrant affidavits and reevaluate whether the affidavits, as
modified, establish probable cause to support the warrants.
         Defendant disagrees with the state’s “third-party”
reasoning. According to defendant, the principles that govern a person’s privacy interest in information contained on
a cell phone apply equally when that information is maintained by a cell phone service.
         We need not resolve in this case the parties’ dispute over the extent of defendant’s protected privacy interest, because the state’s alternative argument for partial
suppression is unpreserved. And we decline to undertake
in the first instance the kind of parsing of information
obtained through the warrant that the state now seeks with
its alternative argument. As indicated above, the state filed
a consolidated response to all defendant’s motions to suppress the warrants at issue here. In it, the state asserted
that the supporting affidavits for the warrants established
probable cause; that the warrants themselves described
with sufficient particularity the items to be seized; and that
the warrants were narrowly tailored so as not to exceed the
probable cause shown. The state did not separately address
defendant’s motion to suppress evidence obtained through
the September 22 warrant—either to explain why the
breadth of the warrant was supported by probable cause or
to identify the records that the state believed it could have
obtained without a warrant.
        To the extent that the state addressed the scope of
protected privacy interests with respect to any of the search
Cite as 

 (2022)                                 653

warrants, it made a generic statement that the enhanced
privacy interests that apply to the data stored on personal
electronic devices do not extend to “records and data stored
with third-parties,” but it acknowledged that this court has
“suggested” that “a customer has a constitutionally protected
privacy right in the contents of his or her past communications,” even if “stored and kept with a service provider.”
Those arguments did not address which of the individual
categories of evidence sought by the September 22 warrant—
or by any of the other search warrants—was information
in which defendant lacked a protected privacy interest. Nor
did the state identify which pieces of information it believed
it could have obtained without the September 22 warrant.
And it did not explain how the analysis of probable cause for
the later warrants would be different if some of the information obtained through the September 22 warrant could have
been lawfully obtained without a warrant.
         In other words, the state litigated the motions to
suppress on an all-or-nothing basis. It did not argue that the
court should deny the motion to suppress only in part even
if the court agreed with defendant’s challenge to the warrant. Under the circumstances, the state did not preserve its
argument that the trial court should have suppressed only
some—but not all—of the evidence obtained unlawfully. See
State v. Jones, 

, 

 (2005) (when
“the state did not argue to the trial court that differing circumstances surrounding each interview provided separate
grounds for admitting the evidence pertaining to each interview,” state had failed “to preserve for appeal any alternative argument supporting the admissibility of any part of the
evidence”); see also State v. Sarich, 

, 

 (2012) (explaining that, “when a party offers evidence
as a whole and the evidence is rejected by the trial court,
the appellate court will affirm the trial court’s ruling if any
part of the evidence is inadmissible”). Before us, the state
does not dispute that it obtained at least some information
in which defendant had a protected privacy interest through
the overbroad September 22 warrant. See State v. Johnson,

, 

 (2006) (“Defendant clearly
had a cognizable privacy interest in the content of his telephone calls.” (Emphasis in original.)). Thus, the trial court
654                                            State v. Harris

correctly granted defendant’s motion to suppress evidence
obtained through the overbroad September 22 warrant, and
we decline to consider whether the state might have been
entitled to have the motion denied in part. Accordingly, we
conclude that the trial court did not err in suppressing the
entirety of the evidence obtained from the September 22
warrant.
      4. Later warrants
         Our conclusion that we must affirm the trial court’s
suppression of all evidence obtained through the overbroad
September 22 warrant cascades into our analysis of the rest
of the search warrants at issue here. The state relied on evidence obtained through the September 22 warrant to obtain
the next round of warrants a few days later, and then continued to rely on the evidence derived from the September 22
warrant to obtain each subsequent warrant that defendant
challenged. In its ruling, the trial court expressly found
that,
   “to the extent that affidavits [for later search warrants]
   rely on evidence obtained from earlier search warrants
   that have been suppressed, the court struck that evidence
   from subsequent affidavits and concludes there is no probable cause to support the warrant.”
         The state has not challenged that conclusion, except
in challenging the court’s underlying conclusion that the
evidence obtained with the earlier warrants must be suppressed. The state, for example, did not (and does not) argue
that the affidavits for any of the later suppressed search
warrant established probable cause even after excising
the evidence that the state unlawfully obtained from the
overbroad September 22 warrant and those warrants that
relied on that evidence to establish probable cause. And the
state did not (and does not) make an argument of that type
with respect to any of the subsequent affidavits that the
state relied on to obtain the subsequent search warrants.
Thus, the court did not err in concluding that the 23 subsequent search warrants were not supported by probable
cause, after excising from the supporting affidavits evidence
that the state derived from the unlawful September 22
search.
Cite as 

 (2022)                              655

         In summary: We conclude that the trial court did
not err in determining the September 22 T-Mobile warrant
to be overly broad. Because the state now concedes that at
least some of the information it obtained required a valid
warrant, and because the state did not preserve its alternative argument that that evidence should have been suppressed only in part, we conclude that the trial court did
not err in suppressing all of the evidence obtained with
the warrant. We also conclude that the trial court did not
err in granting defendant’s motions to suppress evidence
obtained through the remaining 23 search warrants, which
lacked probable cause once the information derived from the
September 22 warrant had been excised.
                   III.   CONCLUSION
        For the foregoing reasons, we affirm the challenged
rulings by the trial court.
        The order of the circuit court is affirmed.