State v. Thompson

                                       273

Argued and submitted March 10, decision of Court of Appeals and judgment of
                 circuit court affirmed October 13, 2022


                    STATE OF OREGON,
                    Respondent on Review,
                               v.
              DARIUS LESHAWN THOMPSON,
               aka Darius Lawshawn Thompson,
                     Petitioner on Review.
          (CC 14CR29087) (CA A160396) (SC S068639)
                                    

    Petitioner moved to suppress evidence derived from the retention of his cell
phone, which was held for five days without a warrant. The trial court denied the
motion, a jury convicted defendant of first-degree robbery and other crimes, and
the Court of Appeals affirmed. Held: (1) The warrantless retention of defendant’s
phone for five days was unreasonable in the circumstances of this case and violated Article I, section 9, of the Oregon Constitution; (2) defendant adequately
raised and preserved his objection to certain pieces of evidence in the trial court
and the Court of Appeals; and (3) the admission of the evidence that should have
been suppressed did not prejudice defendant, so the trial court’s error in admitting that evidence was harmless.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.



    On review from the Court of Appeals.*
   Anne Fujita Munsey, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
   Jennifer S. Lloyd, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, and Garrett, Justices, and Baldwin, Senior Judge,
Justice pro tempore.…
______________
    * On appeal from Multnomah County Circuit Court, David F. Rees, Judge.

, 

 (2021).
    … DeHoog, J., did not participate in the consideration or decision of this case.
274                                     State v. Thompson

  BALMER, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
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        BALMER, J.

         In this criminal case, defendant robbed someone
with a knife, and the victim shot defendant. Defendant
sought treatment in a hospital, where police officers questioned him. An officer seized defendant’s cell phone as likely
containing evidence of the shooting and other crimes. The
officer did so without a warrant, fearing that, if he did not
seize the phone, defendant could otherwise destroy the phone
or its contents. Police kept the phone for five days before
applying for a warrant to seize and search the phone. Once
they had the warrant, police searched the phone and found
records of calls and messages related to the robbery and
shooting. They then used that information in questioning
defendant, eliciting statements that defendant argues were
incriminating. Before trial, defendant moved to suppress the
phone and all derivative evidence, and the trial court denied
the motion. A jury found defendant guilty of first-degree
robbery, among other crimes, and the Court of Appeals
affirmed the resulting conviction. State v. Thompson, 

, 

 (2021).

         We allowed review, limited to the issues raised by
the motion to suppress, including preservation questions at
trial and on appeal. We first accept—and agree with—the
state’s concession that the Court of Appeals erred in holding that it did not need to consider three statements that
defendant claims should have been suppressed because he
identified them only in his reply brief in that court, and not
in his opening brief. 

. We then conclude, for the
reasons explained below, that keeping defendant’s phone
for five days without a warrant was unreasonable in the
circumstances presented here and was, therefore, unlawful. We also conclude that defendant adequately raised
and preserved his objection to the admission of evidence
derived from the phone’s unlawful seizure, and that the
trial court erred in denying defendant’s motion to suppress.
Finally, we evaluate whether the admission of evidence that
should have been suppressed prejudiced defendant, and we
conclude that it did not. We therefore affirm defendant’s
conviction.
276                                       State v. Thompson

                    I. BACKGROUND
         We present the facts as found by the trial court,
because, in reviewing the denial of a motion to suppress,
we “are bound by the court’s factual findings if there is constitutionally sufficient evidence to support them.” State v.
DeJong, 

, 

 (2021). “If findings
of historical fact are not made on all pertinent issues and
there is evidence from which such facts could be decided
more than one way, we will presume that the facts were
decided in a manner consistent with the court’s ultimate
conclusion.” State v. Ehly, 

, 

 (1993).
        Defendant used a knife to rob another person. He
was aided by an accomplice, Beacock, also known as “Pree.”
At some point during the robbery, the victim drew a gun
and shot defendant in the leg.
          Defendant went to a hospital for treatment of his
gunshot wound. When he arrived, he presented false identification. Because defendant had been shot, hospital staff
contacted the police. Officer Robertson responded, along
with other officers. Robertson recognized defendant from
prior encounters and realized that defendant had not given
his true name to the hospital. The local dispatch center had
received no other reports of persons being admitted to a hospital in the area with a gunshot wound that night.
         Robertson questioned defendant briefly and asked
defendant about the wound. Defendant claimed that he had
been the victim of a drive-by shooting. Robertson took defendant’s cell phone, believing it would contain evidence related
to the shooting and to the possible crime of identity theft
(based on defendant’s presentation of false identification
when he was admitted to the hospital). Robertson was concerned that, if he did not seize the phone, defendant would
destroy the phone or erase its data. Robertson did not have
a warrant to seize the phone. He did not search the phone at
that time.
        Over the next five days, police investigated the robbery and shooting, including by locating and interviewing the
victim. On the fifth day, Robertson applied for and obtained
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a search warrant for the phone’s contents. Robertson then
searched defendant’s phone and found, among other things,
records of calls between defendant and Pree, including five
calls on the night of the shooting, and one text message from
Pree to defendant early the following morning that said,
“Hey bro, you all right?” The police arrested defendant the
day after searching the phone.
          Following defendant’s arrest, Robertson and another
officer interviewed defendant. At first, defendant repeated
his claim that he had been the victim of a drive-by shooting
and claimed that he had never spoken to Pree on the phone
and would not recognize a picture of Pree. After more questioning, however, defendant changed his story and admitted to being present during the robbery. He claimed that
Pree, not defendant, had attempted to rob the victim and
that Pree, not defendant, had wielded the knife. In this version of the story, defendant had been “a bystander” and had
“r[u]n off,” and Pree had “just wanted [defendant] there for
… protection.”
         A few minutes later in the interview, Robertson
mentioned that the police had searched defendant’s phone.
Robertson suggested that the records of calls and texts
between defendant and Pree contradicted defendant’s earlier claim that he had never talked with Pree on the phone.
After the phone was brought up, the interview continued,
and defendant and Robertson had several exchanges which
defendant now argues are prejudicial and which we discuss
below.
         Defendant was indicted on multiple charges, including attempted aggravated murder, robbery, assault, unlawful use of a weapon, and identity theft. Before trial, defendant moved to suppress “the seizure of defendant’s cell
phone, as well as all derivative evidence.” Defendant argued
that Robertson did not have probable cause to seize the
phone and, furthermore, that no exigency justified keeping the phone for five days. In defendant’s view, even if
the phone’s initial seizure were lawful, the state was permitted to retain the phone for only the time it would have
taken to get a search warrant—six to 10 hours, according to
Robertson.
278                                        State v. Thompson

         The state responded that both the initial seizure
and the retention of the phone for five days were lawful. It
contended that Robertson did have probable cause to believe
that the phone contained evidence relevant to both the shooting and the identity theft, and that exigencies justified the
seizure and retention because the phone or its data could be
destroyed if it were not seized and retained.
         The trial court agreed with the state and denied
defendant’s motion to suppress. The court concluded that
Robertson had probable cause to seize the phone, at least as
to the crime of identity theft, and possibly as to the shooting
as well, and that the five-day retention was justified because
it was part of “an active, ongoing investigation.”
         Later during the same hearing, defendant argued
a series of motions in limine seeking to exclude parts of a
video recording of defendant’s police interview, which the
state wanted to play for the jury. Among the parts of the
interview defendant sought to exclude, defendant identified
certain comments he made after Robertson had referred to
the contents of defendant’s phone, and that we describe in
detail below. Even though the court had already denied his
motion to suppress, defendant argued, “for the purposes of
appeal,” that that part of the interview was implicated in
the motion to suppress. If Robertson had not been able to
confront defendant about what was on his phone, defendant
explained, “the interview would have flowed differently,”
and specific statements in the interview following that
moment were therefore derivative of the cell phone’s seizure.
The court expressly recognized that defendant was “preserving the argument with respect to [the court’s] ruling
on the phone with respect to those statements as well.” The
state did not object or disagree with the trial court’s characterization that defendant was preserving the argument.
        The case proceeded to trial. The jury found defendant not guilty of attempted aggravated murder but convicted him of first- and second-degree robbery, second-degree assault, unlawful use of a weapon, and identity theft.
         Defendant appealed, assigning error to the trial
court’s denial of his motion to suppress, along with another
ruling. Among other things, defendant reiterated his argument
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that the seizure of the phone affected the subsequent police
interview. The state argued that any error was harmless,
and, in reply, defendant identified three statements from the
interview that he argued were prejudicial and were derivative of the unlawful seizure because they occurred after
police told defendant about the call logs that they had found
on his phone during the search.
        The Court of Appeals affirmed in a split decision.
Thompson, 

. The majority assumed without deciding that the trial court had erred in denying defendant’s motion to suppress, and it agreed with the state that
any error in admitting evidence derived from the seizure
of the phone was harmless. 

. In its harmlessness
analysis, the majority declined to consider the three statements that defendant had identified in his reply brief, further noting that its conclusion would have been the same
even if it had it considered the latter statements. 

.
         The dissent disagreed, explaining that, in its view,
retaining defendant’s phone for five days was not justified
by an exigency, and the state should have sought a warrant
sooner than it did. 

 (Egan, C.J., concurring in
part and dissenting in part). The dissent also concluded that
the statements that defendant had identified in his reply
brief should have been considered as part of the harmlessness analysis, and it disagreed with the majority’s determination that the error was harmless. 

.
         As noted, we allowed review of the various questions related to the motion to suppress.
                      II. ANALYSIS
         As a preliminary matter, we address the Court of
Appeals’ holding that, because defendant identified certain
statements that he claims should have been suppressed
only in his reply brief in that court—and not in his opening
brief—it did not need to consider those statements in deciding whether any trial court error was prejudicial. 

.
        On review, the state concedes that that holding
was error. The state agrees that, if defendant preserved his
280                                             State v. Thompson

claim as to the suppression of the entirety of the interview
after Robertson confronted defendant with information
derived from his phone—a separate issue that we discuss
below—then “nothing prevented him from filing a reply that
identified specific statements that constituted prejudice.”
We agree that ORAP 5.45 permits an appellant to use a
reply brief to clarify arguments from their opening brief,
particularly in response to specific arguments made in the
answering brief.
        We turn to the other issues related to the motion
to suppress. “We review a trial court’s denial of a motion to
suppress for errors of law ….” DeJong, 

.
         This case presents four related questions: (1) whether
the police violated Article I, section 9, of the Oregon
Constitution by seizing and retaining defendant’s phone
without a warrant, (2) whether the evidence that defendant
sought to suppress derived from that seizure, (3) whether
defendant adequately preserved his suppression argument
with regard to certain statements that he made during the
police interview, and (4) whether any error by the trial court
was harmless. For the reasons explained below, we conclude
that the five-day retention of defendant’s phone was unlawful, that part of defendant’s police interview derived from
that unlawful seizure, and that defendant adequately preserved his claim of error as to his statements in the police
interview after the officers had informed defendant of the
call logs and texts found in the search of his phone. We further conclude, however, that the trial court’s error in denying the motion to suppress was harmless.
A.    Whether the Retention of Defendant’s Cell Phone Was an
      Unlawful Seizure
        Article I, section 9, of the Oregon Constitution protects
individuals against unreasonable searches and seizures:
         “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.”
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As relevant here, that provision protects the rights of individuals to be free from “unreasonable search, or seizure.”
Searches are distinct from seizures, although they sometimes occur together. “A search occurs when the government
invades an individual’s privacy interest, whereas a seizure
occurs when there is a significant interference, even a temporary one, with a person’s possessory or ownership interests in the property.” State v. Barnthouse, 

,

 (2016) (citation and internal quotation marks
omitted). Keeping property in police custody is a form of continuing seizure. State v. Owens, 

, 

 (1986) (“The seizure of an article by the police and the
retention of it (even temporarily) is a significant intrusion
into a person’s possessory interest in that ‘effect.’ ”).

         As this court has explained, “[u]nder Article I, section 9, searches and seizures must be conducted pursuant
to a warrant or one of the few specifically established and
limited exceptions to the warrant requirement. Searches
and seizures are distinct events requiring separate justifications.” State v. McCarthy, 

, 

(2021). Each search or seizure by the state, including continuing seizures, must be reasonable, as demonstrated by
an accompanying warrant or by coming within an exception to the warrant requirement. If police search or seize
something without a warrant, the state has the burden to
prove that that search or seizure was valid under an exception to the warrant requirement. State v. Unger, 

, 

 (2014); ORS 133.693(4) (“Where the
motion to suppress challenges evidence seized as the result
of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the
prosecution.”).

         In this case, the relevant exception to the warrant
requirement is the “exigent circumstances,” or “exigency,”
exception. “Under that exception, police may conduct a warrantless seizure or search if they have probable cause and
exigent circumstances exist. Exigent circumstances are circumstances where prompt responsive action by police officers is demanded.” McCarthy, 

 (citation and
internal quotation marks omitted).
282                                        State v. Thompson

          Exceptions to the warrant requirement, such as the
exigency exception, are limited in various ways, including in
terms of scope and duration. “The scope of a warrant exception,” for instance, “is limited by the purposes for that exception.” 

; see also State v. Stevens, 

, 

 (1991) (a report of missing children justified a brief, targeted investigation of the house where police
had probable cause to believe the children were located).
Likewise, an exception “may not be used in ways that reach
beyond the purposes of the particular exception.” State v.
Fulmer, 

, 

 (2020); see also State
v. Miller, 

, 

 (1985) (explaining
that an exigency that permitted entry into a room might not
justify a search into closed cupboards or drawers).
         The duration of a warrant exception also may be
limited. This court has held that the exigency exception,
for example, lasts only while the corresponding exigent circumstances last. See McCarthy, 

 (an exigency
may justify initial seizure, but “the seizure itself may eliminate any exigency that would justify proceeding further
without a warrant,” such as, in that case, searching a car);
State v. Davis, 

, 

 (1983) (exigent circumstance of someone being held inside a room by
an armed person did not justify warrantless entry into the
room after the person being held walked out the door); State
v. Quinn, 

, 

 (1981), overruled
on other grounds by State v. Hall, 

, 

(2005) (a deferred warrantless search of a vehicle “must be
commenced as promptly after the seizure as is reasonable
in the circumstances”). Additionally, the police may not create or prolong exigent circumstances by their own inaction
or for their own convenience. State v. Fondren, 

, 

, cert den, 

 (1979), overruled
on other grounds by State v. Brown, 

, 

 (1986) (exigent circumstances did not exist when officer waited four hours after establishing probable cause to
seize a parked automobile because an “officer cannot create
exigent circumstances by his own inaction”); Quinn, 

 (a search that was delayed “for the convenience of the
police and the owner of the stolen property” was not justified
by the exigency exception).
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         In this case, Officer Robertson took defendant’s
phone and held it for five days before seeking and obtaining
a warrant. Both taking and keeping the phone were warrantless seizures that each must have been both supported
by probable cause and subject to a warrant exception. As to
probable cause, Robertson testified that he thought that he
had probable cause to believe that defendant’s phone would
have evidence of defendant’s identity and evidence related to
defendant’s shooting. As to exigency, Robertson testified to
his belief that, if he left the phone with defendant, defendant
might destroy the phone or erase its data before Robertson
could get a warrant and search the phone. In the officer’s
view, the potential destruction of evidence was an exigency
that justified seizing (but not searching) the phone and holding it until a search warrant application could be processed.
We assume without deciding that Robertson’s initial seizure
of the phone was supported by probable cause and justified
by an exigency, and we focus instead on whether retaining
the phone for five days before applying for a warrant was
justified by an exigent circumstance.
         In the state’s view, the exigency exception applies in
this case because, if the phone had been left with or returned
to defendant, defendant could have destroyed the phone or
altered its contents. As the state argues, exigent circumstances may include “situations where the delay caused
by obtaining a warrant would likely lead to the loss of evidence.” McCarthy, 

. But even in such a circumstance, police officers are not permitted to prolong the
circumstance through their own decision not to seek a warrant. See Fondren, 

; Quinn, 

.
By continuing to hold the phone without seeking a warrant
to retain the phone and to search it, the police impermissibly prolonged the very circumstance that the state argues
allowed them to retain the phone. Robertson testified that
he could have applied for (and potentially received) a warrant in six to 10 hours after seizing the phone. Instead, he
waited five days. By that time, the purported exigency was
attributable only to Robertson’s delay in seeking a warrant, and it no longer justified the continuing seizure. The
state has not identified any exigency or other exception to
the warrant requirement that might justify Robertson’s
284                                       State v. Thompson

retention of the phone for five days without seeking a
warrant.
         Fondren offers a helpful comparison and supports
our conclusion that the delay here was unlawful. The officer
in that case obtained information that constituted probable
cause to believe that marijuana was in a car owned by the
defendant. 

. The officer received that information between 6:30 and 7:30 p.m., and he found the car at
defendant’s place of work in less than 45 minutes. The officer chose not to seek a warrant, although he testified that a
warrant could have been applied for and obtained within an
hour and a half to four hours. 

. At 11:30 p.m., four
to five hours after the officer had probable cause, the officer had the defendant called out from his workplace to the
car. The defendant refused to consent to a search of his car,
and the officer had the car towed. In other words, the officer
seized the car to prevent the loss of any evidence inside. The
officer obtained a search warrant the next day, searched the
car, found marijuana, and seized it. The defendant moved to
suppress the marijuana, arguing that the seizure of the car
was unlawful. 

.
         As relevant here, the question in Fondren was
whether seizing defendant’s car was justified by exigent
circumstances because the contraband was likely to disappear if the officer did not seize the car before seeking a
warrant. This court observed that the officer had enough
information to apply for a warrant more than four hours (the
maximum time it would have taken to get a warrant) before
the defendant was due to return to his car. The officer did
not cite any other exigency justifying a delay in getting a
warrant. As this court explained, “That the officer waited
until 10:00 p.m. or thereafter to attempt to obtain a warrant and then decided there was insufficient time does not
create exigent circumstances. … The officer cannot create
exigent circumstances by his own inaction.” 

.
This court concluded that the purported exigency did not
justify the seizure and that the motion to suppress should
have been granted.
         Although the law applicable to the seizure of vehicles has changed since Fondren was decided, see Brown, 301
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, overruled by McCarthy, 

, Fondren
still stands for the principle that police may not create—or
extend—the circumstances that justify a temporary, warrantless search or seizure. In Fondren, as in this case, the
relevant inaction was the decision not to apply for a warrant
despite having the necessary information. In both cases, the
exigency could have been avoided or made immaterial by
applying for and potentially receiving a warrant. Although
Fondren is not on all fours with this case, the state makes no
attempt to distinguish Fondren, and, reasoning by analogy,
we conclude here that the circumstances that justified the
initial seizure of defendant’s cellphone did not justify police
in keeping it for five days. As we said in State v. Watson, 

, 

 (2013), regarding the seizure of a
person, “both Oregon statutes and this court’s Article I, section 9, case law require that law enforcement officers have
a justification” for a temporary seizure as part of an investigation, and that “officer[s’] activities be reasonably related
to that investigation and reasonably necessary to effectuate
it.” If the officers’ activities “exceed those limits, then there
must be an independent constitutional justification for those
activities.” 

         The state also argues that, once police have lawfully
seized evidence of an alleged crime, they may then hold that
evidence indefinitely for use at trial, without a warrant. The
state relies on cases in which, the state argues, this court
implied that containers of illicit substances, once lawfully
searched, may be held for use at trial: State v. Heckathorne,

, 

 (2009); Owens, 

; and
State v. Herbert, 

, 

 (1986).

          The state’s reliance on those cases is misplaced. In
those cases, the evidence at issue was allegedly unlawful or
controlled substances and their containers. See Heckathorne,

 (anhydrous ammonia, a precursor substance
used in methamphetamine production); Owens, 

 (unspecified controlled substances); Herbert, 

 (cocaine). Additionally, those cases focused on the legality of initial searches and seizures, not the state’s ability to
retain seized evidence for use at trial. Even so, to the extent
that those cases did permit the police to hold property
286                                         State v. Thompson

without a warrant, they did so in part because the property
at issue was contraband, and its possession by the defendants was illegal.
         In this case, however, the evidence at issue was
defendant’s own phone—not stolen property or contraband—and it was, of course, lawful for defendant to possess
the phone. Although the defendants in Heckathorne, Owens,
and Herbert would not have been able to have their seized
contraband returned to their possession, see ORS 133.643(3)
(requiring that someone seeking the return of seized things
must be lawfully entitled to possess those things), here,
police could have returned defendant’s phone. Heckathorne,
Owens, and Herbert are distinguishable from this case and
do not stand for the proposition that any property, once in
police custody, may be retained indefinitely as evidence in
the absence of a warrant.
          The state raises the additional counterargument
that, under Fourth Amendment case law, the five-day
retention of defendant’s phone was “reasonable” because,
as Robertson testified, “[a] lot happened during that [five-day] period of time.” The state essentially contends that the
retention was permissible because police were diligently
pursuing their investigation of the shooting and developing
probable cause to search and seize other evidence in various locations, as well as the phone. The state emphasizes
that “[t]he five-day delay before obtaining a warrant was not
due to neglect, but, rather, as the trial court found, resulted
from investigators’ other obligations during an ‘active, ongoing investigation.’ ”
         That argument fails for two reasons. First, it is
based on the state’s premise that Fourth Amendment case
law allows police to retain seized property for a “reasonable”
time. Our conclusion above as to the validity of the seizure
here flows, however, from Article I, section 9, of the state constitution, which, as we have consistently held, may be more
restrictive of police activity than the federal constitution.
State v. Caraher, 

, 

 (1982). And
our cases do not countenance an open-ended reasonableness
inquiry that balances law enforcement’s investigative needs
against an individual’s property interests. Rather, our cases
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make clear that police may justify temporary warrantless
seizures only to the extent that those seizures are “reasonably necessary to effectuate” an investigation, and police
activities that “exceed those limits [require] an independent
constitutional justification.” Watson, 

.

         Second, even if we look to federal case law for guidance, an ongoing investigation, however diligently pursued,
does not automatically toll the constitutional requirement
that the seizure and retention of property be reasonable—
especially the seizure and retention of property like phones,
which, for many, are integral to everyday life and contain
a wealth of personal information. See Riley v. California,

, 396-97, 

, 

 (2014)
(suggesting that phones now often contain more information
than houses do). The state cites United States v. Burgard, 

 (7th Cir), cert den, 

 (2012), which
summarizes the principle well: “After seizing an item without a warrant, an officer must make it a priority to secure a
search warrant that complies with the Fourth Amendment.
This will entail diligent work to present a warrant application to the judicial officer at the earliest reasonable time.”

         In Burgard, the Seventh Circuit found that retaining a seized phone for six days without a warrant was
reasonable, and the state urges us to come to the same
conclusion here. But the circumstances in Burgard were different. In Burgard, the court detailed how the seizing officer worked toward getting a warrant during those six days.
Id. at 1031. The process for getting a warrant in that case
involved working with another officer, who was assigned to
work part time with the FBI, and then collaborating with
a federal prosecutor. The only delays attributed to events
outside the warrant application process were delays due to
an armed robbery in a nearby town, which the officer applying for the warrant had to respond to, and an intervening
Saturday, during which the officer may have continued to
work on the robbery or “may have taken that day off.” Id.
Thus, although some delay was attributable to intervening
causes, the bulk of the delay was due to the complex warrant
application process, and the intervening causes included an
emergency that required immediate attention.
288                                         State v. Thompson

         Here, by contrast, Robertson testified that he was
working on other, not phone-related aspects of the investigation of this case for the bulk of the five days after he seized
defendant’s phone. Robertson did not testify that he, like
the officer in Burgard, faced delays in attempting to acquire
the warrant due to intervening emergencies, inefficiencies
in the warrant process, or the need to coordinate the application with other law enforcement agencies. And although
part of Robertson’s investigation may have involved preparing other materials in support of the warrant that was
ultimately issued—which included physical evidence and
locations, in addition to defendant’s phone—Robertson did
not testify that those efforts were necessary to get a warrant to seize and search the phone. And even if the five-day
delay here were due to inefficiencies in the warrant process,
that alone would not necessarily excuse police from limiting their retention of seized property to a reasonable time
as required by the Oregon Constitution. See McCarthy, 

 (“[L]aw enforcement agencies and courts cannot
create exigent circumstances by failing to take reasonable
steps to develop warrant processes that protect against
the invasion of the rights of a citizen that results from an
unnecessarily cumbersome warrant process.” (Citation and
internal quotation marks omitted.)). Thus, even if we were
to apply the federal “reasonableness” standard proposed by
the state, the five-day delay in seeking a warrant would not
have met that standard.
         In sum, we conclude that, under the facts of this
case, retaining the phone for five days, when the police could
have obtained a warrant in less than one, was not “reasonably necessary” to the investigation, Watson, 

,
and violated Article I, section 9. To be clear, we do not hold
that there is a specific time limit within which police must
obtain a warrant in every case, or that there was such a precise deadline in this case. Cf. Illinois v. McArthur, 

, 

, 

 (2001) (declining to adopt
a bright-line rule that a warrantless seizure is unreasonable
under the Fourth Amendment). Rather, the continued seizure
was justified only for the time that was reasonably necessary
to obtain a warrant, and we conclude that the five-day delay
was not reasonable under the circumstances here.
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B.    Whether the Evidence at Issue Derived from the Seizure
         Evidence that is obtained as the result of an unconstitutional act is generally suppressed. State v. Arreola-Botello, 

, 

 (2019). If the state
gains information through an unlawful search or seizure
in violation of Article I, section 9, the state may not take
advantage of that information, which would be “an advantage that [it] would not have had had the police stayed within
the bounds of the law.” Unger, 

.
         In this case, defendant sought to suppress “the seizure of defendant’s cell phone, as well as all derivative evidence.” Defendant acknowledges that his phone was searched
pursuant to a warrant but contends that that search was
tainted by the preceding, unlawful seizure. He asserts that
his motion to suppress covered the phone itself, information
and data obtained from the search of the phone, and other
evidence derivative of the unlawfully obtained information.
For analytical purposes, we distinguish between (1) evidence taken directly from the search of defendant’s phone—
such as information as to defendant’s identity and text messages between defendant and Pree—as to which police had
obtained a warrant, and (2) defendant’s statements during
his police interview made after Robertson referred to certain information found on the phone.
        This court recently explained how we approach evidence obtained when unlawful police conduct leads to a warranted search:
     “[T]his court [has] adopted a burden-shifting framework
     that applies when a defendant challenges the admission of
     evidence obtained in a warranted search that is preceded
     by an illegality. Under that framework, the defendant has
     the initial burden to establish a minimal factual nexus
     between the illegality and the challenged evidence. If the
     defendant does so, the burden shifts to the state to establish that the challenged evidence was untainted by the
     illegality.”
DeJong, 

 (citation omitted). We apply that
framework in this case and evaluate whether defendant
established a minimal factual nexus between the unlawful
seizure and the challenged evidence.
290                                        State v. Thompson

         As for the first category of evidence, information
found within the phone itself, defendant argues that he
established the minimal factual nexus by pointing out that,
in Robertson’s search warrant application, Robertson identified the phone by brand, color, and number, and described it
as “currently being held in the Gresham Police [Department]
Evidence division.” That the phone was being held by the
police, of course, was true only because the phone had been
seized and retained despite the dissipation of the exigency
that justified the initial seizure and for what we have just
determined was an unreasonably long period of time. The
state makes no argument that defendant did not establish a
minimal factual nexus between the unlawful seizure of the
phone and the evidence that it obtained from the phone.

         This aspect of the case bears some resemblance
to State v. Johnson, 

, 

 (2003). In that
case, the police unlawfully seized defendant’s clothes as
evidence, and the trial court granted defendant’s motion to
suppress the use of the clothes at trial. 

. The police
then applied for a warrant authorizing a new seizure of the
clothes, which were still being held by the police. In its warrant application, the state “used information derived from
that earlier unlawful seizure, viz., the fact that the clothes
could be found in a police evidence locker.” 

. This
court held, relying on that fact, that the defendant “did meet
his burden of showing a factual nexus between the evidence
at issue and the prior unlawful conduct, and that he succeeded in shifting the burden of persuasion on the issue of
taint to the state.” 

         Similarly, in this case, Robertson used the fact that
defendant’s phone could be found in the Gresham Police
Department Evidence Division in his search warrant application. Accordingly, defendant established a minimal factual nexus between the unlawful seizure and the evidence
learned from the phone. The state does not attempt to distinguish this case from Johnson. As we noted previously,
however, the phone was not introduced as evidence, and
defendant did not object to any testimony or evidence at
trial as being derivative of the unlawful seizure other than
the interview statements, to which we now turn.
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         As to the interview statements, defendant argues
that there is a factual nexus because, partway through the
interview, Robertson described to defendant certain information obtained from the phone, specifically “call logs” and
texts between defendant and Pree. Defendant argues that
statements he made after being presented with that unlawfully obtained information were derivative of the unlawful
retention of the phone. Defendant asserts that Robertson
used that information to “put pressure on defendant to
change his story.”
         The record of defendant’s interview provides some
support for that assertion. For example, among other assertions, defendant first denied talking to Pree on the phone.
Later, the officer described data on defendant’s phone,
including records of phone calls between defendant and
Pree, and challenged one of defendant’s previous assertions: “You told me that you’ve never talked to [Pree] on the
phone or anything like that before, so I wonder why he has
your number in the first place.” Defendant argues that certain statements he made after Robertson showed him the
phone logs were tainted by police use of information from
the unlawfully seized phone, thus demonstrating the kind of
nexus required by our cases. The state makes no argument
that there is not a factual nexus between the information on
the phone that Robertson referred to during the interview
and defendant’s subsequent statements, and we conclude
that defendant met his initial burden.
        Because defendant met that burden, the burden
shifted to the state to “establish that the challenged evidence was untainted by the illegality.” DeJong, 

. The state could do so, for example, “either by demonstrating the evidence would have been inevitably discovered, was discovered through independent means, or was so
attenuated from the illegality as to dissipate the taint of the
unlawful conduct.” Johnson, 

.
         As to the call logs and other evidence gained
directly from the phone, the state argues that that evidence
was obtained from an independent source—specifically,
Pree’s phone, which the police also had seized, and which
contained records of the same calls and texts between the
292                                        State v. Thompson

phones. The state argues that, because of that independent
source, defendant would have to establish another basis
for suppressing his interview statements than his assertion that they were derivative of the unlawful seizure of
the phone. We observe that, although the state presented
evidence suggesting that it eventually learned of the call
records from independent sources, that evidence does not
show that the state learned of those call records prior to
defendant’s police interview. As a result, even accepting the
viability of the state’s independent source argument, that
argument would not resolve whether defendant’s interview
statements derived from the unlawful seizure of his phone.
The state makes no counterargument to that position, other
than the procedural arguments discussed below. Because
we reject those arguments for the reasons explained below,
we conclude, based on the framework articulated in DeJong,
that at least the three interview statements that defendant
challenges should have been suppressed.
C. Whether Defendant Preserved His Derivative-Evidence
   Argument
          The state argues that defendant failed to preserve
his argument that certain statements from his interview
should have been suppressed as derivative of the phone’s seizure. The state acknowledges that defendant moved to suppress the seizure of his phone and “all derivative evidence,”
but it argues that defendant did not adequately convey to the
trial court or the state that that derivative evidence included
some of defendant’s interview statements. The state recognizes that defendant identified those interview statements
later in the hearing after the motion to suppress was denied,
but it contends that that discussion was too little, too late,
and was not an adequate substitute for identifying the specific interview statements defendant sought to suppress in
his written motion or initial argument.
         First, we note that the state has provided no authority to support its specific position that defendant’s written
motion to suppress “the seizure of defendant’s cell phone,
as well as all derivative evidence” inadequately identified
the evidence that defendant sought to suppress. Assuming,
without deciding, that the state is correct on that point, we
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nevertheless conclude that defendant adequately preserved
his claim as to the interview statements.
         As we have often reiterated, “the preservation rule
is a practical one, and close calls … inevitably will turn
on whether, given the particular record of a case, the court
concludes that the policies underlying the rule have been
sufficiently served.” State v. Parkins, 

, 

 (2009). Three of the policies underlying preservation guide the outcome in this case.
         One is that preservation “gives a trial court the
chance to consider and rule on a contention, thereby possibly
avoiding an error altogether or correcting one already made,
which in turn may obviate the need for an appeal.” Peeples
v. Lampert, 

, 

 (2008). In this
case, the trial court had a chance to rule (and did rule) on
the motion to suppress, as well as to respond to defendant’s
argument made during the motions in limine that portions
of the interview were included in that motion.
         The second policy is that preservation “ensures fairness to opposing parties, by requiring that the positions of the
parties are presented clearly to the initial tribunal so that
parties are not taken by surprise, misled, or denied opportunities to meet an argument.” State v. Walker, 

, 

 (2011) (internal quotation marks omitted).
Here, the state was not taken by surprise, misled, or denied
an opportunity to meet that argument, because, when defendant stated that he was preserving his suppression claim as
to the interview, the state had a chance to object, or preserve
an argument in response, and did not do so.
         The third policy is that “preservation fosters full
development of the record, which aids the trial court in
making a decision and the appellate court in reviewing it.”
Peeples, 

. Here, the state has not identified any additional evidence it would have introduced or any
other way the record would have been more fully developed
had defendant specifically referred to the interview statements in his written motion to suppress.
        Additionally, we have observed that, “[p]articularly in
criminal cases, in which there is a premium on considerations
294                                        State v. Thompson

of cost and speed, the realities of trial practice may be such
that fairly abbreviated short-hand references suffice to
put all on notice about the nature of a party’s arguments.”
Walker, 

. In the circumstances of this case, the
short-hand reference to “all derivative evidence” sufficed,
and, if the state believed that defendant’s motion to suppress
was inadequately specific, it could have challenged it on that
ground when the court was hearing that motion.
        Taken together, the above considerations underlying preservation indicate that defendant adequately preserved his argument regarding the interview statements.
We therefore reject the state’s contention that defendant’s
motion to suppress as to the interview statements was
unpreserved.
D. Whether the Trial Court’s Denial of Defendant’s Motion
   to Suppress Was Harmless Error
         “Although an error occurred in the trial court, we
will affirm if there is little likelihood that the particular
error affected the verdict.” State v. McKinney/Shiffer, 

, 

 (2022) (internal quotation marks
omitted); see also Or Const, Art VII (Amended), § 3. In determining whether the error affected the verdict, “we do not
determine, as a factfinder, whether the defendant is guilty.”
State v. Davis, 

, 

 (2003). Rather,
the question is “whether, after we review the record, we can
say that there was little likelihood that the [admission of the
derivative evidence] affected the jury’s verdict.” 

        Defendant argues that the trial court’s denial of
his motion to suppress was not harmless because certain
statements made during his second police interview were
inculpatory and prejudicial. Defendant identifies three
exchanges from that interview that he contends were not
harmless, which we discuss below.
         In response, the state contends that the trial court’s
error was harmless. The state first argues that “the content of any admissions that defendant made after police
mentioned the call records were not qualitatively different
from the incriminating aspects of his statements before that
point.” See State v. Bement, 

, 

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(2018) (“But even when evidence relates to a central factual
issue, its exclusion may be harmless if it is ‘merely cumulative of,’ instead of ‘qualitatively different than,’ evidence
presented to the factfinder.” (Quoting Davis, 

.)).
The state points to significant direct testimony, including
lengthy and detailed testimony from the victim that defendant, not Pree, had wielded the knife and cut the victim on
the neck and (when the victim tried to push the knife away)
on the hand. The victim also testified that defendant, but
not Pree, had fled after the robbery. Additionally, the state
argues that substantial, uncontroverted physical evidence
supported the jury’s findings. Police found the victim’s wallet and identification and a knife with the victim’s blood at
the apartment where defendant was staying. The victim’s
testimony corroborated the state’s theory of the case and
was consistent with the physical evidence.
         In evaluating whether the error was harmless, we
consider both the nature and the context of the error. Davis,

. Here, the nature of the error is that the
trial court refused to suppress the interview statements discussed above. It was undisputed that a robbery had occurred
and that someone had attacked the victim with a knife. The
only issue was whether that person was defendant, as the
state argued, or Pree, as defendant contended. The state
offered the interview to support its theory that defendant
was lying about Pree using the knife to rob the victim when,
the state contended, defendant had not only participated in
the robbery but had been the one to use the knife.
         As for context, the three exchanges now at issue were
part of a much longer interview that lasted around an hour
and occurred about a week after the police had interviewed
defendant at the hospital. Both of those interviews provide
helpful context for the exchanges emphasized by defendant.
The statements that defendant made to police during those
two interviews were presented to the jury through recordings, which were admitted through Robertson’s testimony.1
(Defendant did not testify at trial.)
     1
       The interview at the hospital was an audio recording. The second interview
was videotaped, and the full interview of about one hour was edited jointly by
counsel for the state and defendant to exclude inadmissible or irrelevant material. The edited video of about 24 minutes was played for the jury.
296                                        State v. Thompson

         The first recording demonstrated that, while at the
hospital, defendant initially identified himself as Marcus Tyler
and gave police an identification card to that effect. Shortly
thereafter, Robertson—who, as noted, knew defendant from
earlier encounters—challenged defendant’s statement, saying, “So this is the deal, stud, you’re not Marcus Tyler. You
are Darius Thompson? Is that your real name?” Defendant
immediately acquiesced, admitted that he was Thompson,
and confirmed that he had used identification that was not
his. Defendant said that the identification was his cousin’s
and that he used it because he didn’t like hospitals. Defendant
then went on to tell Robertson that he had been the victim
of a drive-by shooting. Defendant’s narrative included numerous details, including where he was walking from (a Shari’s
restaurant) and to (home) and the types of the cars that were
purportedly involved (a black Buick and a gray Impala). When
asked whether he had wanted to identify or retaliate against
the person who he said had shot him, defendant said, “I don’t
know about that.” As Robertson later explained during the
hearing on defendant’s motion to suppress, defendant was
not “forthcoming with information” at the hospital. Instead,
defendant was “evasive at times” and gave Robertson “facts
that later [Robertson was] unable to verify.”
         A week later, during defendant’s custodial interview at the police station, defendant first repeated the
drive-by narrative, as captured in the video played at trial.
Defendant claimed that he had been shot by the man who
was later identified as the victim of the robbery. Robertson
asked how defendant knew who had shot him during the
drive-by. Defendant indicated the victim had been bragging
around their shared apartment complex about shooting
someone, and that a friend of defendant’s had brought him
the victim’s identification card. When first asked about Pree,
defendant denied knowing Pree well or that he would be
able to identify Pree in a photograph. Defendant indicated
that he had never spoken with Pree on the phone, and said,
“I really don’t associate with him.” When asked about the
identification that he had presented at the hospital, which
defendant had said was his cousin’s, defendant now stated
that the identification was not from any of his relatives, and
that defendant had found the identification.
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         After defendant had explained his narrative,
Robertson challenged defendant, saying, “I know that what
you’re telling me isn’t what happened at all. Okay? I know
that something else happened that night ….” Defendant
immediately changed his story again, admitting that there
was a robbery—only that Pree, not defendant, attempted
the robbery, and that defendant had run away when the robbery began. He then admitted to knowing Pree and to being
present at the robbery, although, just a few minutes earlier,
he said that he had never spoken to Pree on the phone and
would not recognize him. When asked about the knife, defendant stated that the knife used in the robbery would not be
found in the apartment where he was staying (although it
later was). He also stated that he was “not sure” what kind
of knife it was, and, when asked whether Pree still had the
knife (because he had asserted that Pree was the one who
used the knife), he said, “I don’t know,” even though, as the
police later discovered and the evidence at trial showed, the
knife was found in the apartment where defendant stayed.
Defendant also, despite his earlier statements claiming he
did not know them, identified both Pree and the victim from
photographs that were shown to him by police.
         All the above discussion occurred before Robertson
brought up defendant’s call records and text messages, and
that discussion was not subject to the motion to suppress.
Defendant’s statements made before Robertson raised the
call records and text messages include multiple indications
that defendant was not being truthful—about his identity at
the hospital, about the cause of the shooting being a robbery,
and about details surrounding the robbery such as knowing
Pree and being able to identify the victim. Defendant’s discussion also included evasive responses to questions posed
by Robertson and the other interviewing officer, such as by
defaulting to saying “I don’t know” in response to various
questions (for example, about the type and location of the
knife used in the robbery), or not responding audibly at all.
At trial, defendant’s dishonesty was undisputed. As defense
counsel himself argued in closing, “Mr. Thompson lied, no
question about that. He lied saying he was Marcus Tyler
originally. He lied at other times. He minimized what he
did.”
298                                          State v. Thompson

         With that context, we now turn to the three derivative exchanges that defendant contends were prejudicial.
The three exchanges occurred after Robertson raised the
call logs and texts that had been found on defendant’s cell
phone. The challenged statements appear on different pages
of the transcript and other, unchallenged questions and
responses appear between the three challenged statements.
We address the statements individually.
        The first exchange challenged by defendant concerned whether Pree used a knife or not during the robbery:
     “OFFICER ROBERTSON: But before you told me that
  [Pree] had a knife and he held it to [the victim’s] neck, and
  now you’re saying that you don’t know what he had.
     “[DEFENDANT]: No, I said that (inaudible) I didn’t
  know if he had it on him or not.”
Defendant contends that a jury could infer from that
exchange that defendant was lying about having the knife,
or at least that he was unwilling to positively assert that
Pree had the knife.
         Such an inference is permissible; however, the evidence is cumulative. Unchallenged portions of the two
recordings had already made clear defendant was not
being entirely truthful or forthright about the knife. The
challenged statement also echoed an earlier, unchallenged
statement about whether Pree still had the knife (“I don’t
know.”). And despite defendant’s hedging in the challenged
exchange, defendant still maintained, after the phone was
brought up, that he had not wielded the knife. For example, Robertson asked shortly afterward, “Nobody else there
had a knife?” Defendant responded, “I didn’t.” A bit later,
Robertson stated, “Yeah, you guys brought a knife to a gun
fight.” Defendant countered, “Not me.” Throughout defendant’s discussions with the police, defendant consistently
offered an ambiguous and shifting narrative of the shooting
and, eventually, of the robbery. The challenged statement
is not qualitatively different from the unchallenged statements that defendant made.
       Defendant also points to an exchange about whether
defendant was trying to kill the victim:
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      “OFFICER ROBERTSON:        Okay. So you’re saying you
   didn’t want to kill him?

      “[DEFENDANT]: I don’t know.”

Defendant contends that a jury could take that statement as
an admission of guilt.
          In the context of the interview, however, a jury
would be unlikely to have understood that statement as an
admission of guilt. The statement was sandwiched between
much more direct assertions of innocence by defendant.
A few moments earlier, Robertson asked, “Will you agree
on that[,] that Pree didn’t have the knife?” Defendant
responded, “I didn’t have any weapons on me.” And a few
moments after, Robertson asked, “Nobody else there had a
knife?” Defendant responded, “I didn’t. I don’t know what
Pree had.” Having just heard those assertions, a jury would
be unlikely to take defendant’s statement, “I don’t know,”
as a direct or implicit admission of guilt to either wanting
to kill the victim or using a knife. A jury would more likely
see it as another aspect of his attempt to evade the line of
questioning about his involvement in the robbery at all or
whether he, rather than Pree, had the knife. As defendant
admits in his briefing in this court, that statement could
be viewed as an example of “merely trying to avoid the officer’s questions.” So understood, that statement is not qualitatively different than defendant’s earlier unchallenged and
nonderivative interview statements about “not knowing”
about various aspects of the confrontation with the victim.
        Finally, defendant challenges an exchange about
whether defendant wanted to get the victim in trouble for
shooting him:
      “[DEFENDANT]: I don’t want to—I don’t want
   this dude [the victim] to get in trouble for shooting me
   (inaudible).

      “OFFICER ROBERTSON: Why would you not want
   him to get in trouble for shooting you?

      “[DEFENDANT]: Because he didn’t know any better,
   bro. He was just shooting at somebody.”
300                                      State v. Thompson

Defendant contends that that exchange, like similar statements by defendant, could lead the jury to “infer that defendant believed that the victim was acting in self-defense,
which indicates that defendant had in fact attacked the victim with the knife.”
         But it is not at all clear that one could reasonably
infer from defendant’s statements that he believed the victim was acting in self-defense and, from that, infer that it
was defendant who wielded the knife, rather than Pree. In
isolation, such an inference might be plausible, but, by that
point in the trial, the evidence had made it apparent that
the victim of the planned robbery had a gun and that those
engaged in the robbery (defendant and Pree) had a knife.
And the jury already knew, by the time the interview video
was shown, that defendant’s primary defense was not that a
robbery had not occurred or that he had not been present, but
rather that it was Pree, not defendant, who had wielded the
knife. Defendant’s statements about not wanting to get the
victim in trouble were in the context of Robertson’s further
questioning about whether defendant and Pree had brought
a knife to the robbery and used it. Shortly after defendant
made that statement, Robertson challenged defendant’s
story as noted above, saying, “Yeah, you guys brought a
knife to a gun fight.” Defendant responded, “Not me. ‘Cause
I didn’t know Pree was gonna do this.” He then said, “I
didn’t know Pree was going to—going to pull out a knife[.]”
Those statements were clear expressions by defendant that
he did not bring or use a knife. As with the above exchange
about whether defendant wanted to kill the victim, it would
be speculative to think that the jury would likely infer that
defendant was admitting in his earlier, ambiguous statements that the victim was acting to defend himself from
defendant, only to immediately retract that position. At
most, the above exchange in context would lead to the inference that defendant was being untruthful, which, as we have
explained, was both undisputed and clearly established by
the earlier, nonderivative part of the interview.
         Moreover, the jury watched the videotaped interview played at trial and would have seen no change in the
tone of the conversation or the interaction between the officers and defendant from before the contents of his phone are
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mentioned and after that occurred. Although the officers had
confronted defendant with inconsistencies in his own statements and inconsistences between his statements and information they had obtained from other witnesses and sources,
and defendant had changed his story at times and given
multiple versions of his answers, the nature of the interview
was the same throughout. More importantly, as discussed
in detail above, the content of defendant’s statements that
the jury heard before the reference to the phone’s contents
and afterwards did not change appreciably. Defendant had
already abandoned the drive-by shooting explanation for his
gunshot wound. He had admitted that he knew Pree, that
Pree had introduced him to the victim, and that he had been
present at the robbery. It would have been clear to the jury
that defendant’s subsequent statements, like his previous
statements, were often evasive, vague, and ambiguous, but
not otherwise incriminating.
         Finally, the arguments of the parties at trial would
have confirmed for the jury that the statements defendant
challenges were not considered significant by either party,
presumably because they were not different in kind from
much of the other evidence that came in without objection.
Neither the state nor defendant referred to any of the three
challenged statements in their opening statements or closing
arguments, other than a brief reference during the state’s
closing argument, without commentary, to defendant’s statement that he “d[idn’t] know” whether he wanted to kill the
victim. Indeed, during its closing, the state replayed a portion of the videotape interview in which defendant gave his
explanation of the crime—how Pree “put a knife” to the victim’s neck and the victim got out of the car to shoot Pree. He
stated, “This was something Pree did (inaudible)[,] he just
wanted me there for like protection or something.” But the
portion of the video that was replayed was before the point
at which police confronted defendant with the call logs and
texts taken from his phone.
        Instead of emphasizing, or even mentioning, the
challenged interview statements, the parties’ closing arguments focused on whether the victim’s extensive testimony
about the robbery and shooting, and defendant’s and Pree’s
respective roles, was credible. The arguments also touched
302                                      State v. Thompson

on the physical evidence, including the facts that the victim’s wallet and identification were found in the apartment
where defendant was staying, as was the knife with the victim’s blood on it. The state’s arguments also reviewed the
victim’s consistent testimony that defendant, not Pree, had
wielded the knife, and that defendant, not Pree, had fled
the scene after the attempted robbery. Both parties argued
about the inferences that could be drawn from the specific
locations of the individuals involved during the robbery and
when the shots were fired. Neither defendant nor the state
seemed to believe that the equivocal statements to which
defendant now points would make much difference one way
or the other in the jury’s consideration of the charges.
         In sum, our review of the record and consideration
of defendant’s statements persuades us that the trial court’s
error in failing to suppress them was harmless. The inferences of guilt that defendant urges us to draw from the three
statements are simply not there or are independently supported by unchallenged evidence, rendering the challenged
statements cumulative. Accordingly, despite the trial court’s
error and the state’s unlawful retention of defendant’s phone
without a warrant, we affirm.
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.