State v. Hawthorne ( 2021 )

487
Argued and submitted October 19, 2020, affirmed December 22, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DENZEL CORTEZ HAWTHORNE,
Defendant-Appellant.
Marion County Circuit Court
17CR69313; A168045
504 P3d 1185
Defendant appeals a judgment of conviction for murder, first-degree robbery,
and unlawful use of a weapon. He first assigns error to the trial court’s denial
of his motion to suppress evidence resulting from a warrantless “ping” of his
cell phone’s location, arguing that the trial court erroneously concluded that the
warrantless ping was justified by exigent circumstances. The state cross-assigns
error, arguing that the trial court erred initially in concluding that defendant
had a protected privacy interest in the cell-site location information generated by
his service provider. The state therefore contends that the ping was not a search
in the constitutional sense. Defendant also challenges the proportionality of his
sentence, arguing that the trial court failed to address the constitutional impli-
cations of his intellectual disability under State v. Ryan, 361 Or 602, 396 P3d
867 (2017). Held: Eliciting defendant’s phone’s real-time location was a search
under Article I, section 9, of the Oregon Constitution, but exigent circumstances
permitted detectives to ask the cell service provider to reveal that information
without first obtaining a warrant. Consequently, the trial court did not err in
denying defendant’s motion to suppress. The trial court also did not err in impos-
ing defendant’s sentence, as the record shows that the court adequately consid-
ered evidence of his intellectual disability and its effect on the proportionality of
his sentence under Article I, section 16, of the Oregon Constitution.
Affirmed.
Thomas M. Hart, Judge.
David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
488 State v. Hawthorne
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Affirmed.
Cite as 316 Or App 487 (2021) 489
DeVORE, P. J.
Defendant appeals a judgment of conviction for
murder, first-degree robbery, and unlawful use of a weapon.
ORS 163.115; ORS 164.415; ORS 166.220 (2015). The police
identified defendant as a suspect within a couple hours of
the murder at issue. Before they obtained a search warrant,
detectives asked that defendant’s cell phone service provider
“ping” defendant’s phone’s location to help locate the fleeing
suspect. On appeal, defendant first assigns error to the trial
court’s denial of his motion to suppress evidence resulting
from that ping. He argues that the trial court erroneously
concluded that the warrantless ping was justified by exigent
circumstances. The state cross-assigns error, arguing that
the trial court erred initially in concluding that defendant
had a protected privacy interest in the cell-site location
information generated by his service provider. The state
argues that, because defendant lacked a privacy interest,
the ping was not a search under either Article I, section 9,
of the Oregon Constitution or the Fourth Amendment to the
United States Constitution.
Defendant also challenges the proportionality of his
sentence, arguing that the trial court failed to address the
constitutional implications of defendant’s intellectual dis-
ability under State v. Ryan, 361 Or 602, 396 P3d 867 (2017).1
We conclude that eliciting the phone’s location was a
search under Article I, section 9, but that, under the circum-
stances of this case, the warrantless search was justified by
exigent circumstances. We also conclude that the trial court
did not err in imposing defendant’s sentence, because the
record shows that the court considered evidence of defen-
dant’s intellectual disability and its effect on the proportion-
ality of his sentence. Accordingly, we affirm.
I. FACTS
The parties do not dispute the following facts.
Defendant is from Detroit, Michigan, and was attending
college in North Dakota. In May 2016, while defendant
was visiting Oregon, he began buying marijuana from W.
1
Defendant was sentenced to life imprisonment with a minimum of
300 months to be served for Count 1 (murder).
490 State v. Hawthorne
During that visit, defendant purchased a pound of mari-
juana and stayed the night at W’s parents’ home, where
W lived with his girlfriend, J. Defendant and W agreed
that defendant would return to school and mail money to
W, and W would then mail additional marijuana to defen-
dant. Defendant and W’s relationship deteriorated when W
mailed less marijuana than promised on multiple occasions.
Defendant began sending threatening social media
messages to J.2 On May 22, 2016, defendant messaged J that
“if I gotta come down there it’s going to get ugly.” Defendant’s
messages to J, who was pregnant, escalated. He messaged
J that she would “suffer the same consequences” as W and
that, if she kept “talking[,] when I come down there * * *,
we’re going to run a train on you” but that, “if your baby
daddy sending my shit like he suppose to, then you have
no worries.” On June 13, 2016, defendant warned J, “If I
was you, I wouldn’t be around [W] for a while because I just
* * * got off the phone with my uncle and he’s going to get
a little visit soon. If you was smart, you would keep your
distance.”
On June 28, 2016, W bought J a new car, and J
posted a picture of the car on social media. Within a few
days, two of the car’s tires were slashed while the car sat in
their driveway overnight. Defendant took credit for having
the tires slashed. On July 28, 2016, defendant messaged J,
stating:
“Can I come to the house and pick [the marijuana] up or
will you all send it, but it’s no way I’m not about to let that
shit slide. All that shit talking just feeding me energy to do
what I got to do which would leave one of you all a single
parent. * * * If I don’t hear from him tonight, I’ll get the * * *
point and from then on it’s bomb away. It’s a dirty game
that I really think is a joke. You only get one life.”
Defendant followed up:
“[W] gonna be the death of you all. I have given him a
chance to make it right but he seem to take me for a joke.
So let’s see what happens next. Fuck them petty-ass tires.
2
Because defendant’s messages are central to our analysis of whether exi-
gent circumstances existed in this case, we quote them in some detail.
Cite as 316 Or App 487 (2021) 491
Baby [E] might not never know her dad. And if he hides,
then take a guess who will be next in line.”
When J told defendant to leave her alone, he
responded:
“[W] couldn’t even answer my phone so I’m back on top and
when shit start getting real, don’t beg, don’t apologize, don’t
cry, just prepare. All you all got to do is give me my shit and
this can all be over.
“* * * * *
“I really hope you all don’t bring that baby to the house
because when I cocktail bomb that bitch, the first person
running out is getting shot.
“* * * * *
“That mean I’m ready to do life for this shit. You all tak-
ing money out of my family’s mouth so that means fuck to
family. I hope your fucking baby dies in your stomach from
stress since you all don’t want to send my shit.”
Defendant and his friend, Carrera, drove from North
Dakota, and, shortly before 8 p.m. on August 1, showed up
at W’s parents’ home. W’s mother, L, and father, B, were
home watching a movie with two friends, but neither W nor
J was home. Defendant and Carrera walked into the home
without knocking. Defendant held a pistol and Carrera held
a shotgun. When defendant learned that W was not home,
he became angry and demanded either payment or the
marijuana he was owed. He put his pistol to B’s head and
had B lead him to the garage in search of marijuana. When
they returned from the garage, defendant was carrying a
bag with marijuana in it, and defendant and Carrera placed
valuables into a bedsheet.
At that point, W returned home and opened the
door. L shouted to W to run. Carrera ran after W, returned
about a minute later, and told defendant that he “took care
of it.” Although Carrera had not actually caught up with W,
W’s parents understood Carrera’s report to mean that he
had killed W. B approached defendant, grabbed the bed-
sheet, and shoved defendant down a hallway. B broke a piece
off of the handle of Carrera’s shotgun and moved to tackle
492 State v. Hawthorne
defendant. Defendant shot B in the head, then ran with
Carrera out of the house.
B was transported to the hospital, where he later
died. Deputies arrived at the scene at 7:56 p.m. and began
interviewing witnesses and preparing a search warrant.
Neighbors reported seeing the two suspects fleeing with
their weapons in a red Pontiac. The detectives located W and
J and began interviewing them shortly after 10 p.m. The
detectives learned that W and J had a history with defen-
dant. W provided defendant’s phone number. W also showed
detectives texts between defendant and W from 8:35 p.m.,
after the shooting. In a heated exchange of messages, the
men arranged to meet at another address for an apparent
confrontation. In an hour-long interview, J provided detec-
tives with her phone and the history of messages between
defendant and J.
After receiving defendant’s phone number and
reviewing defendant’s threatening messages to W and J,
detectives contacted defendant’s service provider, AT&T,
at 11:14 p.m. Pursuant to the Stored Communications Act
(SCA), 18 USC § 2702(c)(4), detectives asked AT&T to ping
defendant’s phone to provide its general location.3 AT&T
complied. The location was close to the Budget Inn Motel in
Woodburn. Detectives spotted a red Pontiac in the motel’s
parking lot with Illinois plates registered to Carrera.
They confirmed with motel management that defendant
had checked in. A search warrant for the motel room was
approved at 5:15 a.m., and defendant was taken into custody
at 5:50 a.m.
II. PROCEEDINGS
Prior to trial, defendant moved to suppress the cell-
site location information (CSLI) from AT&T and any deriva-
tive evidence. Defendant argued that, under Article I, section
9, of the Oregon Constitution and the Fourth Amendment
3
Pursuant to 18 USC § 2702(c), cell phone service providers
“may divulge a record or other information pertaining to a subscriber * * * to
a governmental entity, if the provider, in good faith, believes that an emer-
gency involving danger of death or serious physical injury to any person
requires disclosure without delay of information relating to the emergency[.]”
Cite as 316 Or App 487 (2021) 493
to the United States Constitution, defendant retained a
privacy interest in his real-time CSLI. Defendant argued
that, because he retained a privacy interest, asking AT&T
to ping his phone’s location constituted a search requiring
a warrant. Defendant argued that no exception to the war-
rant requirement was available under the circumstances
because any exigency from the 8:00 p.m. shooting or later
text messages had dissipated by the time AT&T pinged his
phone at 11:14 p.m.
The trial court concluded that defendant retained a
privacy right as to his real-time location as indicated by his
CSLI, but that exigent circumstances justified the warrant-
less ping of defendant’s phone because the location informa-
tion was necessary to prevent physical harm to the persons
targeted by defendant’s various threats.4
In a jury trial, defendant was convicted of felony
murder, ORS 163.115 (a lesser-included offense), two counts
of first-degree robbery, ORS 164.415, and five counts of the
unlawful use of a weapon with a firearm, ORS 162.220.5
Defendant was sentenced to the mandatory minimum sen-
tence of life with the possibility of parole after 25 years for
his felony murder conviction, and five consecutive years
for his first-degree robbery and unlawful use of a weapon
convictions.
On appeal, defendant renews his arguments from
his motion to suppress, in which he contends that the cir-
cumstances were insufficiently exigent to justify the war-
rantless ping of his phone’s location. He argues that any exi-
gency had dissipated by the time detectives requested the
ping, three hours after the shooting. By that time, defen-
dant argues that detectives had found pieces of the gun at
the scene, signaling that the suspects’ guns were “likely
inoperable.” Defendant argues that there was no remaining
4
The trial court did not specify whether it concluded that defendant held a
privacy interest in his real-time location information under Article I, section 9,
the Fourth Amendment, or both.
5
Count 1 had charged aggravated murder. ORS 163.095 (2015). The trial
court merged the jury’s guilty verdicts on an alternative theory of the lesser-
included felony murder, ORS 163.115, another count of first-degree robbery, ORS
164.415, and two counts of first-degree burglary, ORS 164.225.
494 State v. Hawthorne
threat of physical injury or harm to anyone that required a
warrantless search, because B and L were at the hospital
and W and J were at the sheriff’s office being interviewed.
Thus, defendant concludes that the ping violated his right to
be free from unreasonable searches and seizures under both
Article I, section 9, and the Fourth Amendment.
The state responds, first, by cross-assigning error
to the trial court’s initial conclusion that defendant had a
privacy interest in his real-time CSLI. The state argues, as
it did in the trial court, that, because defendant voluntarily
entered into a contract with AT&T—which, the state con-
tends, collects location data as part of its general business
practices—defendant did not retain an interest in infor-
mation he relinquished to a third party. If defendant did
retain a privacy right in his real-time location information,
the state argues that the trial court correctly concluded
that there was an exigency justifying a warrantless ping of
defendant’s phone.
In his second assignment of error, defendant chal-
lenges the proportionality of his sentence under Article I,
section 16, of the Oregon Constitution. Defendant argues
that the trial court erred in its consideration of evidence that
defendant is “mildly intellectually disabled” under Ryan,
361 Or 602, because “the punishment that was imposed * * *
is the same as would be imposed for the far more culpable
actions of a normally-abled defendant.” The state responds
that the trial court did not err under Ryan because the trial
court considered the constitutional effects of defendant’s
intellectual disability and that disability’s impact on the
proportionality of defendant’s sentence on the record, which
is all that Ryan requires.
We first conclude that the trial court did not err in
determining that defendant, as a cell phone user, retained a
privacy interest in his real-time CSLI under Article I, sec-
tion 9. Under the circumstances of this case, however, we
conclude that the exigency presented by the totality of infor-
mation known to detectives justified a warrantless ping to
determine that information. We also conclude that the trial
court did not err in its consideration of defendant’s intellec-
tual disability during sentencing.
Cite as 316 Or App 487 (2021) 495
III. MOTION TO SUPPRESS
A. Privacy Interest
We first consider whether defendant retained a pri-
vacy interest in the real-time location of his cell phone under
Article I, section 9. See State v. Campbell, 306 Or 157, 162,
759 P2d 1040 (1988) (explaining that before we decide a fed-
eral claim, we first consider and decide all questions of state
law). Whether a constitutionally protected privacy interest
exists is a question of law. State v. Sparks, 267 Or App 181,
189, 340 P3d 688 (2014), rev den, 357 Or 325 (2015).
Article I, section 9, provides, in part, that “[n]o law
shall violate the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
search, or seizure[.]” The “threshold test” in analyzing an
Article I, section 9, challenge is determining whether the
government conduct at issue is sufficiently intrusive so as
to constitute a search. State v. Wacker, 317 Or 419, 426, 856
P2d 1029 (1993). A “search” under Article I, section 9, occurs
when the government invades a protected privacy interest.
State v. Meredith, 337 Or 299, 303, 96 P3d 342 (2004).
The Oregon Supreme Court has explained that, in
deciding whether a government action is a search,
“we must decide whether the practice, if engaged in wholly
at the discretion of the government, will significantly
impair ‘the people’s’ freedom from scrutiny, for the protec-
tion of that freedom is the principle that underlies the pro-
hibition on ‘unreasonable searches’ set forth in Article I,
section 9.”
Campbell, 306 Or at 171.
The Supreme Court has also cautioned that,
“if Article I, section 9, is to have any meaning[,] it must be
read in light of the ever-expanding capacity of individuals
and the government to gather information by technologi-
cal means. It must, in other words, speak to every possible
form of invasion—physical, electronic, technological, and
the like.”
State v. Smith, 327 Or 366, 373, 963 P2d 642 (1998).
496 State v. Hawthorne
The question here is whether the state’s request
to ping a cell phone to reveal its real-time location is suffi-
ciently intrusive so as to be considered a search. The ques-
tion requires an explanation of the nature of a ping. Here,
Detective Emmons testified that a ping is a “request [from
the police] to a cellular service provider to give [the police]
the location of a cellular device.” A ping does not reveal the
precise address or location of a phone, but the location is
generally accurate, and, according to Emmons, can give a
location within a meter of the phone’s location.
Elsewhere, the United States Supreme Court dis-
cussed the nature of cell phone tracking in Carpenter v.
United States, 585 US ___, 138 S Ct 2206, 2211, 201 L Ed
2d 507 (2018), noting that the accuracy of the location infor-
mation increases with the concentration of cell sites, or tow-
ers, within the area, because a cell phone continuously taps
into those cell sites as it searches for a signal. As technol-
ogy improves and cell sites increase, cell phones generate
“increasingly vast amounts of increasingly precise CSLI.”
Id. at 2212.6
Neither the Oregon Supreme Court nor the United
States Supreme Court has addressed the privacy-right impli-
cations of real-time CSLI. Yet, we can take guidance from a
similar decision of the Oregon Supreme Court in one case,
while we distinguish another case. In those cases, the court
analyzes the privacy interest retained in a person’s physical
location as generated by a radio transmitter, a technology
that also easily reveals a person’s location.
In Campbell, the court recognized that, under
Article I, section 9, a person has a privacy interest in keep-
ing his car’s location free from surveillance by means of a
radio transmitter. Campbell, 306 Or at 172. Where officers
attached a radio transmitter to the defendant’s car while it
was parked in a public parking lot, the court reasoned that
“[a]ny device that enables the police quickly to locate a per-
son or object anywhere within a 40-mile radius, day or night,
over a period of several days, is a significant limitation on
6
When analyzing the existence of a privacy interest under Article I, section
9, we look to cases interpreting the Fourth Amendment only for their acknowl-
edgement of the nature of cell phone tracking.
Cite as 316 Or App 487 (2021) 497
freedom from scrutiny[.]” Id. That intrusion is “made more
substantial” because covertly installing a radio transmitter
leads to monitoring that is “much more difficult to detect
than would-be observers who must rely upon the sense of
sight.” Id. The use of radio transmitters by officers meant
that no one could be sure that their location was not being
monitored absent a meticulous and ongoing examination of
their possessions. Id.The intrusion caused by pinging a cell phone is even
greater than that posed by a tracking device attached to
a car. Today, a cell phone is necessary for participation in
modern life, and it is “almost a feature of human anatomy”
that “tracks nearly exactly the movements of its owner.”
Carpenter, 585 US at ___, 138 S Ct at 2218 (internal quo-
tation marks omitted). When the “[g]overnment tracks the
location of a cell phone[,] it achieves near perfect surveil-
lance, as if it had attached an ankle monitor to the phone’s
user.” Id. The power to track location has the potential to
reveal where a person spends time—information that could
reflect a person’s religious, political, social, or professional
associations. As ubiquitous as cell phones are, they could
become tracking devices that the authorities could tap into
at will. That potential would “significantly impair the peo-
ple’s freedom from scrutiny.” Campbell, 306 Or at 171 (inter-
nal quotation marks omitted). Without a warrant to assure
judicial oversight, such clandestine, technological interven-
tion would be susceptible to abuse. Mindful of Campbell,
we conclude that pinging defendant’s phone to reveal its
real-time location was a sufficiently intrusive action to be a
search under Article I, section 9.7
7
We recently addressed the intrusive nature of GPS tracking technology,
albeit in the context of the civil tort of “invasion of privacy,” acknowledging that
even as far back as the late 1800s, the concern about how “[r]ecent inventions
and business methods” threaten an individual’s privacy is as concerning today
as when Samuel D. Warren and Louis D. Brandeis first wrote on the topic in
their groundbreaking article, The Right to Privacy, 4 Harv L Rev 193, 195 (1890).
Reed v. Toyota Motor Credit Corp., 301 Or App 825, 831, 459 P3d 253 (2020). We
reasoned that “the common law adapts to the times to meet the needs of soci-
ety and one’s use of GPS technology today must of necessity be circumscribed
by the same right to be let alone that Brandeis and Warren wrote about well
over 100 years ago.” Id. That same logic applies here as we apply the common
law principles of Article I, section 9, search jurisprudence to modern cell phone
technology.
498 State v. Hawthorne
That conclusion, contrary to the state’s argument,
is not foreclosed by the Oregon Supreme Court’s decision in
Meredith. In Meredith, the court clarified that, although a
person has a privacy interest in his or her location being
free from tracking by a radio transmitter, that interest
must be assessed in light of the “particular context in which
the government conduct occurred.” 337 Or at 306. Where
the government installed a transmitter on the defendant’s
work-provided truck to monitor the defendant’s location
while on duty at work, the court found that the defendant
did not retain a privacy interest “with respect to that truck’s
location,” particularly where the “transmitter never dis-
closed anything other than that location.” Id. at 307.
The state argues that, by entering into a contract
with his cell service provider, defendant entered into a
“unique relationship,” like the relationship of the defendant
in Meredith with her employer, where she did not have a
protected privacy interest in her phone’s location. The state
argues that defendant lacked a protected privacy interest
because, by entering into a contract with AT&T for cell
phone service, he gave AT&T the ability to ping his phone at
any time to determine its location for “any legitimate busi-
ness purpose.”
The state misreads Meredith. Meredith exam-
ined that privacy interest “in light of the particular con-
text in which the government conduct occurred.” Those
circumstances—where there is no privacy from the employer
concerning the employer’s truck during work hours—are not
comparable. Defendant’s service agreement with a cell ser-
vice provider is not equivalent to the employment relation-
ship in Meredith. It is not an agreement to have the govern-
ment use his or her phone as a real-time tracking device. A
cell-phone service agreement is not an exception to a per-
son’s privacy interest in their real-time CSLI.
The state argues that a person has no privacy inter-
est in information that he or she contractually permitted
a third party to generate for legitimate business purposes.
That argument parallels the reasoning of the third-party
doctrine, upon which the state also relies. Under Article I,
section 9, Oregon courts have held that, in some instances,
Cite as 316 Or App 487 (2021) 499
a person does not have a protected privacy interest in infor-
mation that the person voluntarily allows a third party to
access and maintain for its own legitimate business pur-
poses. State v. Johnson, 340 Or 319, 336, 131 P3d 173 (2006)
(holding that the defendant did not have an interest in keep-
ing private historical call records where the service provider
independently kept the records for billing purposes); Sparks,
267 Or App at 191-92 (concluding that the defendant did not
have a privacy interest in subscriber, usage, and payment
records stored by his utility provider where the provider
used that information for billing); State v. Delp, 218 Or App
17, 25-27, 178 P3d 259, rev den, 345 Or 317 (2008) (holding
that the defendant did not have a privacy interest in inter-
net subscription information held by an internet service pro-
vider that independently maintained that information for
its own business purposes).
We decline to extend the third-party doctrine to the
privacy interest at issue here. As applied in other Oregon
cases, the third-party doctrine has encompassed instances
where the government obtained historical records that the
third parties happened to independently maintain in the
course of their regular business practices, such as billing.
Johnson, 340 Or at 336; Sparks, 267 Or App at 191; Delp, 218
Or App at 25. On this record, there is nothing to show that
AT&T independently maintained defendant’s location at the
moment requested for an independent purpose. Instead,
the evidence shows that AT&T pinged defendant’s phone at
the government’s urging to fulfill the government’s request
under the SCA. The ability of the government to access inde-
pendently maintained, historical records under the third-
party doctrine is not easily extended to the qualitatively
different action of asking a third party to actively produce a
record of a person’s real-time location. Under those circum-
stances, where the third party generated real-time location
information pursuant to the government’s request, the fact
that a cell phone’s location was facilitated through a third
party does not overcome the protection provided by Article I,
section 9.8
8
We therefore need not reach defendant’s argument under the Fourth
Amendment, see 316 Or App at 502 n 10.
500 State v. Hawthorne
B. Exigent Circumstances
Our conclusion that defendant had a privacy inter-
est does not end our analysis. Under Article I, section 9, “a
search conducted without a warrant is deemed unreason-
able unless it falls within one of the few specifically estab-
lished and carefully delineated exceptions to the warrant
requirement.” State v. Mazzola, 356 Or 804, 810, 345 P3d
424 (2015) (internal quotation marks and brackets omitted).
One of those carefully delineated exceptions is the exigent
circumstances exception. State v. Snow, 337 Or 219, 223,
94 P3d 872 (2004).9 An exigent circumstance is “a situation
that requires police to act swiftly to prevent danger to life
or serious damage to property, or to forestall a suspect’s
escape or the destruction of evidence.” Id. (internal quota-
tion marks omitted). Whether the facts here justify a war-
rantless search due to exigent circumstances is a question of
law. State v. Ritz, 291 Or App 660, 662, 422 P3d 397 (2018).
In evaluating whether the warrantless search was justified,
we are bound by the trial court’s findings of historical fact
if evidence supports them. State v. Stevens, 311 Or 119, 126,
806 P2d 92 (1991).
Defendant argues that exigent circumstances did
not justify a warrantless search in this instance. Defendant
focuses on three specific facts. First, he argues that there was
no threat of imminent physical harm because police found
pieces of at least one shotgun at the scene, which suggested
that the suspects’ firearms were no longer functioning.
Second, defendant argues that any risk that W and defen-
dant would meet to “exact revenge” based on their 8:35 p.m.
text exchange had dissipated by the 11:14 p.m. ping request,
due to the amount of intervening time. And third, defendant
argues that any potential target was protected from immi-
nent physical harm, because L and B were at the hospital
and J and W were being interviewed by police.
The state argues that, after reviewing defendant’s
messages to W and J in which defendant threatened the lives
9
The exigent circumstances exception requires both probable cause and an
exigent circumstance. Snow, 337 Or at 223. Defendant does not contest that prob-
able cause existed in this case, so we focus our analysis on the sole question of
whether an exigent circumstance existed that justified the detectives’ failure to
obtain a search warrant prior to the ping.
Cite as 316 Or App 487 (2021) 501
of numerous people associated with W, a threat to at least
J’s life existed. That threat was heightened by the detec-
tives’ knowledge that defendant and an associate had driven
across the country to settle a score with W, that the exact
condition of their weapons was unknown, that the pair had
just fatally shot a family member of W, and that defendant
had expressed an interest in continuing to engage with W
after the shooting. Thus, the state argues, the trial court
did not err in determining that the state’s warrantless ping
of defendant’s phone at 11:14 p.m. was justified by exigent
circumstances.
We are persuaded that, in view of all the informa-
tion police possessed, including the escalating threats cul-
minating in the shooting of W’s father, there remained an
imminent threat to human life that required the officers to
immediately locate defendant. See Stevens, 311 Or at 129-32(evaluating the evidence gathered by officers over the course
of their investigation in determining that an exigent risk to
human life existed).
Defendant had sent threatening messages to J for
months leading up to the shooting. In response to not receiv-
ing the correct amount of marijuana, defendant, in turn,
threatened the lives of W, J, and their unborn child, threat-
ened to “cocktail bomb” their home and shoot the “first per-
son to run out,” and stated that W would be the “death of you
all.” Defendant demonstrated a willingness to carry those
threats to fruition. He had coordinated the slashing of J’s
tires from out of state, and, as the trial court found, esca-
lated further when he drove “a third of the way across the
country” with a commitment and plan to settle W’s debts.
On the night of the shooting, defendant had entered
W’s family’s home, without regard as to whether W was
present, threatened four people with a gun and fatally shot
one of them. When W did return to the residence, defen-
dant instructed Carrera to follow W. Carrera gave chase
and returned, stating that he “took care of it.” That state-
ment, combined with defendant’s post-shooting willingness
to meet up with W, conveyed that defendant likely intended
to continue settling the debt for which he had travelled
across the country. Defendant’s shooting of W’s father and
502 State v. Hawthorne
defendant’s messages threatening both W and J’s family
generally, showed that defendant’s willingness to use vio-
lence extended beyond just W and was not limited to a spe-
cific victim. Defendant had fled the scene, armed, and in a
car.
The detectives’ investigation revealed that defen-
dant was committed to carrying out his threats and posed
an imminent threat to the lives of J, L, and anyone inside
their families’ homes. With those considerations in mind,
we conclude that, under the circumstances at the time
defendant’s phone was pinged, the detectives had reason-
able grounds to believe that immediately locating defendant
was necessary to prevent physical harm to J, W, and their
families.10 The trial court, therefore, did not err in refusing
to suppress evidence resulting from the ping of defendant’s
phone.
IV. SENTENCE
In his third assignment of error, defendant argues
that the trial court erred in imposing consecutive, manda-
tory sentences so that defendant will only be eligible for
parole after a period of 25 years. Defendant argues that his
sentence is disproportionate under Article I, section 16, of
the Oregon Constitution, which requires that “all penalties
shall be proportioned to the offense.” Whether a sentence is
disproportionate under Article I, section 16, is a question of
law. Ryan, 361 Or at 614-15. In conducting that review, we
are bound by any findings of historical fact that the trial
court may have made, if they are supported by evidence in
the record. Id.In considering the proportionality of a sentence, the
overarching inquiry is whether the length of the sentence
would shock the moral conscience. Id. at 612. That standard
10
By concluding that a ping is a search under Article I, section 9, we do
not reach defendant’s arguments that the ping also violated his rights under
the Fourth Amendment. See Campbell, 306 Or at 173 (explaining that where
the court found a privacy interest under Article I, section 9, the court “need not
address defendant’s Fourth Amendment arguments”). In this case, assuming
defendant did have a right to privacy in his real-time CSLI under the Fourth
Amendment, the exigency exception under the Fourth Amendment would have
similarly justified the warrantless ping. State v. Fessenden, 355 Or 759, 775-76,
333 P3d 278 (2014).
Cite as 316 Or App 487 (2021) 503
reflects that the legislature has the primary authority to
determine the gravity of an offense and the appropriate
length of punishment, and that a court will only conclude
that a particular punishment is unconstitutionally dispro-
portionate in the rare instance when the legislature has
exceeded that authority. Id.The Oregon Supreme Court has identified the fol-
lowing three factors for determining whether a sentence is
constitutionally disproportionate to the offense, as applied
to a particular defendant: “(1) a comparison of the severity
of the penalty and the gravity of the crime; (2) a comparison
of the penalties imposed for other, related crimes; and (3) the
criminal history of the defendant.” State v. Rodriguez/Buck,
347 Or 46, 58, 217 P3d 659 (2009).
Here, defendant raises arguments only as to the first
factor in Rodriguez/Buck. Under that factor, a court “may
consider, among other things, the specific circumstances
and facts of the defendant’s conduct that come within the
statutory definition of the offense,” such as the defendant’s
personal characteristics. Id. at 62. An offender’s intellectual
disability is such a characteristic. Ryan, 361 Or at 620-21.
In Ryan, the Supreme Court held that, where evidence of an
offender’s intellectual disability is presented, a trial court
must consider that intellectual disability, including how the
disability affects the offender’s level of understanding of the
nature and consequences of his conduct and his ability to
conform his conduct to the law. Id. at 621. A trial court com-
mits reversible error where the record demonstrates that the
court only “generally note[s]” the fact of an offender’s intel-
lectual disability rather than addressing the “constitutional
implications” of a defendant’s intellectual disability on the
gravity of the sentence. Id. at 624. A trial court, therefore,
must address on the record a defendant’s intellectual dis-
ability in comparison to the gravity of the offense. State v.
Fudge, 297 Or App 750, 757, 443 P3d 1176, rev den, 365 Or
819 (2019).
We understand defendant to argue that the trial
court failed to adequately consider the first Rodriguez/
Buck factor in light of Ryan. The state argues that the
record reflects that the trial court considered defendant’s
504 State v. Hawthorne
intellectual disability when concluding that life with the
possibility of parole after 300 months was a constitution-
ally proportionate sentence. We agree that the record suf-
ficiently reflects that the trial court considered evidence
of defendant’s intellectual disability in comparison to the
gravity of the offense.
Defendant’s experts at trial testified that defendant
is mildly intellectually disabled, with an IQ of around 72.
One of defendant’s psychologists testified that defendant’s
disability manifested in poor judgment and reactive impul-
sivity. The psychologist also testified that defendant has
developed academically to the level of someone in the sixth
or seventh grade, despite having completed high school and
being enrolled in college at the time of the offense.
At sentencing, the record reflects that the trial
court considered the evidence presented of defendant’s intel-
lectual disability as it evaluated the severity of the pun-
ishment to the gravity of the crime. As the trial court was
considering the first factor under Rodriguez/Buck, the court
was unpersuaded by the experts’ testimony that defendant
was functioning at the level of an 11-year-old, and instead
found that defendant “clearly knew right from wrong,” had a
“moral compass,” and yet had made a plan to come to Oregon
to “settle a score” by force. Those determinations laid the
foundation for the trial court’s finding that
“it does not shock the conscious [sic] of anybody in the com-
munity that a 22-year-old that shoots and kills someone
else during the course of a robbery would get a life sentence
with a mandatory minimum of 25 years.”
With that record, we determine that the trial court suffi-
ciently explained how it viewed the implications of defen-
dant’s disability in regard to the gravity of the offense. The
trial court did not err in determining that defendant’s sen-
tence of life with the possibility of parole was constitution-
ally proportionate.
V. CONCLUSION
In sum, the pinging of defendant’s phone to reveal
its real-time location was a search under Article I, section 9,
but exigent circumstances permitted the detectives to ask
Cite as 316 Or App 487 (2021) 505
the cell service provider to reveal that information without
first obtaining a warrant. The trial court did not err in deny-
ing defendant’s motion to suppress. Defendant’s sentence is
not constitutionally disproportionate. Therefore, we affirm.
Affirmed.