State v. Serrano (A173250) ( 2023 )

453
Argued and submitted January 24, 2022; conviction on Count 5 reversed,
convictions on Counts 1, 3, 4, 6, 7, and 8 reversed and remanded, otherwise
affirmed March 8; on respondent’s petition for reconsideration filed March 17,
and appellant’s response filed March 23, reconsideration allowed by opinion
April 19, 2023
See 325 Or App 296, 528 P3d 1219 (2023)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JORGE ULISES SERRANO,
Defendant-Appellant.
Marion County Circuit Court
19CR02471; A173250
527 P3d 54
Defendant appeals a judgment of conviction, by nonunanimous verdicts, for
two counts of first-degree rape, ORS 163.375 (Counts 1 and 3); and by unanimous
verdicts for three counts of second-degree sexual abuse, ORS 163.425 (Counts 4,
7, and 8); one count of using a child in a display of sexually explicit conduct, ORS
163.670 (Count 5); and one count of first-degree encouraging child sexual abuse,
ORS 163.684 (Count 6), assigning several errors. Held: The court agreed with
defendant that, under the Supreme Court’s opinion in State v. Mansor, 363 Or
185, 212, 421 P3d 323 (2018), because the investigation that led to the charges
in Counts 1, 3, 4, 6, 7, and 8 stemmed from material discovered in a search of
defendant’s cell phone that was not authorized by a search warrant, the con-
victions must be reversed. The court also agreed with defendant that the trial
court erred in denying defendant’s motion for a judgment of acquittal on Count 5,
using a child in a display of sexually explicit conduct, in which the court charged
that defendant “compelled” the victim to engage in sexually explicit conduct that
defendant recorded. The state implicitly conceded that the record does not include
evidence that defendant compelled the victim. The court rejected the state’s
argument that the means of committing the offense listed in ORS 163.670(1)
are interchangeable descriptions rather than distinct means of committing the
offense, concluding that when the differences in the means by which an offense
can be committed render them “distinct acts,” the state is bound by the substan-
tive allegation in the indictment. The court rejected defendant’s contention that
the trial court erred in declining to sever trial of the charges relating to the juve-
nile victim from trial of those relating to the adult victims, concluding that the
trial court did not err in determining that the circumstances of the charges, and
the conduct and the evidence on which they were based, were sufficiently similar
that the charges could be joined. The court noted that the state conceded error on
defendant’s fifth and sixth assignments of error, in which defendant contended
that his convictions of first-degree rape (Counts 1 and 3), based on nonunanimous
verdicts, must be reversed and remanded.
Conviction on Count 5 reversed; convictions on Counts 1, 3, 4, 6, 7, and 8
reversed and remanded; otherwise affirmed.
454 State v. Serrano (A173250)
Thomas M. Hart, Judge.
Sara A. Werboff, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.*
TOOKEY, P. J.
Conviction on Count 5 reversed; convictions on Counts 1,
3, 4, 6, 7, and 8 reversed and remanded; otherwise affirmed.
Aoyagi, J., concurring.
______________
* Lagesen, C. J., vice Sercombe, S. J.
Cite as 324 Or App 453 (2023) 455
TOOKEY, P. J.
Defendant appeals a judgment of conviction, by
nonunanimous verdicts, for two counts of first-degree rape,
ORS 163.375 (Counts 1 and 3); and by unanimous verdicts
for three counts of second-degree sexual abuse, ORS 163.425
(Counts 4, 7, and 8); one count of using a child in a display
of sexually explicit conduct, ORS 163.670 (Count 5); and one
count of first-degree encouraging child sexual abuse, ORS
163.684 (Count 6).1 For the reasons that follow, we reverse
defendant’s conviction on Count 5 and reverse and remand
his convictions on Counts 1, 3, 4, 6, 7, and 8.
I. BACKGROUND
We summarize the facts as expressly or implicitly
found by the trial court. State v. Ehly, 317 Or 66, 75, 854 P2d
421 (1993). Most of the facts are procedural and undisputed.
Defendant’s convictions stem from evidence police
obtained through searches of the data from defendant’s
cell phone pursuant to two search warrants, the first in
December 2018, and the second in February 2019. The first
warrant was secured based on statements by CB—who is
not a victim in this case. CB reported to police in 2018, that,
in 2015, at the age of 18 or 19, she had had sexual encoun-
ters with defendant. CB filed the police report after learn-
ing that images and videos from those 2015 encounters had
been uploaded without her permission to the pornography
internet site PornHub during a time frame from October
2017 through December 2018. Through investigation, police
learned defendant’s username and that defendant had also
posted videos of CB on Hclips, another pornography website.
Several weeks after the initial investigation, defen-
dant attempted to initiate communication with CB on
Snapchat, a communication platform. In text conversations
between defendant and CB and between defendant and a
police officer posing as CB, defendant stated that he had
had vaginal and anal intercourse with CB when she was
unconscious and that he had multiple photos and videos of
her on his computer and on his old and new cell phones. In
1
The court acquitted defendant of Count 2, attempted unlawful dissemina-
tion of an intimate image, ORS 163.472; ORS 161.405.
456 State v. Serrano (A173250)
those text conversations, defendant sent a photo of himself
and revealed his employment and that he had posted videos
of CB on PornHub.
Based on that information, in December 2018,
police sought and obtained the first warrant for a search
of defendant’s cell phones and computer for evidence of
first-degree rape and first-degree sodomy of CB. The war-
rant commanded a search of defendant’s residence and car
for his cell phones and computer. It authorized a seizure and
search of defendant’s digital devices for the following: evi-
dence “related to the crimes under investigation” in media
form, including pictures and videos and the recording, stor-
ing, duplication, and transmitting of pictures, videos, and
associated data; evidence of defendant’s internet usage for
access and browsing of PornHub and Hclips during the
period October 2017 through December 2018; evidence of
defendant having connected his cell phone to other devices
to transfer the related files; evidence of defendant having
uploaded videos from PornHub and Hclips to cloud storage;
evidence of defendant’s communications with CB during
the period March 2015 through December 2018; evidence
of information identifying the user and/or owner; evidence
of contact information for users and associates; the user’s
identification, contact information, and location between the
dates of March 2015 through April 2015; evidence of “own-
ership, use, and access” of and to defendant’s Snapchat,
PornHub and Hclip accounts during specific time frames;
and “[a]ny other evidence of the crimes of ORS 163.405
Sodomy I and ORS 163.375 Rape I.”
Officers were able to execute the first warrant and
retrieve the data from defendant’s cell phone. An investiga-
tion of that data disclosed images of potential victims other
than CB, which, in turn, led police to seek and execute the
second search warrant, in February 2019.2 The second war-
rant authorized a complete search of defendant’s cell phone,
which revealed information that led to the charges and con-
victions of defendant in this case, for engaging in noncon-
sensual sexual intercourse or contact with two adult women,
2
That investigation also led to charges against defendant based on his con-
duct with CB, not at issue on this appeal.
Cite as 324 Or App 453 (2023) 457
II and KT, and intercourse and sexually explicit conduct
with a 17-year-old girl, AG, and capturing sexually explicit
conduct with AG on video.
Defendant filed a motion to suppress evidence
obtained from the searches of the data from his cell phone,
contending among other points that the warrants violated
the particularity requirement of Article I, section 9, of the
Oregon Constitution. The trial court denied the motion,
concluding that the warrants were sufficiently particular.
Defendant also filed a motion for a judgment of acquittal on
Count 5, using a child in a display of sexually explicit con-
duct, and a motion to sever trial of the charges relating to
AG from trial of those relating to the adult victims, II and
KT, both of which the trial court denied. On appeal, defen-
dant challenges the trial court’s denial of his motion to sup-
press, the trial court’s denial of his motion for a judgment of
acquittal, and the trial court’s denial of his motion to sever.
II. DEFENDANT’S CHALLENGE TO THE TRIAL
COURT’S DENIAL OF HIS MOTION TO SUPPRESS
Defendant does not dispute that the first search
warrant was supported by probable cause that defendant
had committed rape and sodomy of CB. But defendant con-
tends in his first and second assignments of error that that
probable cause only authorized a warrant for the search of
defendant’s cell phone for material related to offenses against
CB that were known to have been committed in a particu-
lar time frame. Although defendant concedes that some of
the first warrant’s commands were specific to evidence of
the crimes involving the victim CB during the relevant time
frame, he contends that other portions of the first warrant
allowed a more generalized search that was not adequately
specific. In particular, on appeal, defendant cites the com-
mand to search defendant’s digital “media” for “evidence
related to the crimes under investigation.”3 Defendant con-
tends that, because the warrant did not limit the search of
media to the crimes of a sodomy and rape against CB during
a particular time frame, the warrant lacked specificity and
3
On appeal, defendant also cites the command to search the cell phone for
“any other evidence” of the crimes of sodomy and rape. However, defendant’s
motion to suppress did not specifically put at issue that command.
458 State v. Serrano (A173250)
authorized an overbroad search, and that the trial court
therefore erred in denying his motion to suppress evidence
obtained through the searches.4 See Or Const, Art I, § 9 (a
search warrant must “particularly describ[e] the place to be
searched, and the person or thing to be seized”).
We review the trial court’s ruling on defendant’s
motion to suppress for errors of law. State v. Stephens, 184
Or App 556, 560, 56 P3d 950 (2002), rev den, 335 Or 195(2003). The Supreme Court explained in State v. Bridewell,
306 Or 231, 247, 759 P3d 1054 (1988), that “[t]he goals of
constitutional search and seizure provisions are to restrain
the government[.]” Article I, section 9, enshrines that goal
by requiring that a warrant must “particularly describ[e]
the place to be searched, and the person or thing to be
seized.” The “particularity requirement” was intended to
“prevent the use of general warrants” by “ensur[ing] that
a warrant describe[s] with particularity the person to be
seized, the place to be searched, or the thing to be seized.”
State v. Carter, 342 Or 39, 44, 147 P3d 1151 (2006). Thus,
a warrant authorizing a governmental search or seizure of
places or things “must allow the executing officer to identify
with ‘reasonable effort’ the things to be seized ‘for which a
magistrate has found probable cause.’ ” State v. Mansor, 363
Or 185, 212, 421 P3d 323 (2018) (quoting State v. Trax, 335
Or 597, 602-03, 75 P3d 440 (2003)).
A search of digital devices necessitates additional
precautions. The court in Mansor explained that, with
regard to digital devices, to comport with the particularity
requirement of Article I, section 9, a search warrant must
“identify, as specifically as reasonably possible in the cir-
cumstances, the information to be searched for, including,
if relevant and available, the time period during which that
information was created, accessed, or otherwise used.”
Id. at 218 (emphasis added).
We agree with defendant that the search command
for “media” in the first warrant, read in isolation from the
4
The court granted defendant’s motion in part, suppressing any evidence
from outside the date range of March 2015 to February 2019.
Cite as 324 Or App 453 (2023) 459
affidavit, fell short for lack of specificity. The search command
did not specify that the search was limited to media relating
to CB. Nor did the command list a time or date range for
the media materials, although that information was known
by the state. The fact that the media command limited the
media search to “evidence related to the crimes under inves-
tigation” did not cure the overbreadth. See State v. Bock
(A169480), 310 Or App 329, 336, 485 P3d 931 (2021) (cit-
ing the Supreme Court’s caution in Mansor, 363 Or at 213,
that a warrant’s command to find “evidence of a particular
crime” does not create specificity sufficient to pass constitu-
tional muster).
But the state is correct that the affidavit cured the
lack of specificity in the first warrant.5 See State v. Turay,
313 Or App 45, 57, 493 P3d 1058, rev allowed, 369 Or 69(2021) (“In assessing whether the commands are suffi-
ciently particular, we consider not only the warrant itself
but [the] affidavit in support of the warrant[.]”). The affida-
vit described in detail the videos and photos that the officer
believed were evidence of the charges of sodomy and rape
of CB and that would be found on defendant’s phone. The
affidavit described the possible date ranges when the videos
and photos were taken and when they had been uploaded
to PornHub and HClips. We conclude that the warrant,
together with the affidavit, allowed the executing officer to
understand precisely what information was being targeted
in the command to examine media files.
Matthew Osterman, a digital forensics investigator
with the Washington County District Attorney’s Office, per-
formed the search of defendant’s cell phone. Osterman tes-
tified that he removed all of the data from defendant’s cell
phone and searched that data for items responsive to the
search warrant. In the process, he bookmarked items that
he thought constituted evidence of sexual crimes. He passed
the bookmarks on to the police.
5
Defendant contended below, but does not contend on appeal, that the affida-
vit was not attached to the warrant at the time of the search. See State v. Mansor,
279 Or App 778, 788, 381 P3d 930 (2016), aff’d on different grounds, 363 Or 185,
421 P3d 323 (2018) (court will consider a warrant’s supporting affidavit only if
that affidavit was attached or incorporated by reference into the warrant, noting
that it is a defendant’s burden to show that).
460 State v. Serrano (A173250)
Police determined that some of the bookmarked
items did not to relate to evidence of offenses against CB
but to offenses against other persons. See Mansor, 363 Or at
218 (“We emphasize, * * * based on our discussion of digital
devices and computer searches above, see 363 Or at 197-202,
that the forensic examination likely will need to examine,
at least briefly, some information or data beyond that iden-
tified in the warrant.”). If only the first warrant had issued,
there is no question that information that was outside the
scope of the first warrant would not have been available to
use against defendant at trial. Mansor, 363 Or at 220-21(“Although such searches are lawful and appropriate, indi-
vidual privacy interests preclude the state from benefiting
from that necessity by being permitted to use that evidence
at trial.”).
But based on that information, police suspected
that defendant had committed other offenses, and so they
conducted a further investigation of the data, which led
them to the identification of the victims in this case and to
request a second warrant for a second search of the data
that had been taken from defendant’s cell phone, relating
to the potential crimes of rape, encouraging child sexual
abuse, using a child in a display of sexually explicit conduct,
and unlawful dissemination of an intimate image. The affi-
davit in support of the second warrant described in detail
the investigation and why the officer believed there was a
need for a broad search of defendant’s cell phone data. We
have reviewed the second warrant and conclude that, when
considered in light of the affidavit, it also was supported by
probable cause. State v. Van Osdol, 290 Or App 902, 907-08,
417 P3d 488 (2018) (“Probable cause exists when the facts,
as set forth in the affidavit, along with any reasonable infer-
ences, could permit a neutral and detached magistrate to
determine that seizable evidence probably would be found at
the place to be searched.”).
Defendant contends, however, that because the
investigation that led to the second warrant originated with
information that was outside the scope of the first warrant,
the second warrant was tainted by that prior “illegality” and
cannot be viewed as having been obtained independently of
Cite as 324 Or App 453 (2023) 461
the prior illegality. See State v. DeJong, 368 Or 640, 654,
497 P3d 710 (2021) (“When a defendant seeks to suppress
evidence discovered in a legally authorized search on the
basis of a prior illegality, the focus of the inquiry is not on
the legality of the act providing authority to search, it is
on the effect that the prior illegality may have had on the
authorized search.”); State v. Johnson, 335 Or 511, 519, 73
P3d 282 (2003) (the independent source doctrine “permits
the introduction of ‘evidence initially discovered during, or
as a consequence of, an unlawful search, but later obtained
independently from activities untainted by the initial ille-
gality’ ” (quoting Murray v. United States, 487 US 533, 537,
108 S Ct 2529, 101 L Ed 2d 472 (1988))). Thus, defendant
contends, the evidence obtained from execution of the sec-
ond warrant was tainted and could not be used at trial.
We disagree with defendant’s characterization of
the material incidentally uncovered during the execution of
the first warrant as “illegal.” The material incidentally dis-
closed in execution of the search, although unauthorized by
the warrant, was not unlawfully obtained. Mansor, 363 Or
at 220-21 (search of digital devices incidentally disclosing
material outside of the warrant’s authorization is “lawful
and appropriate”). But we nonetheless agree with defendant
that, under Mansor, that material was tainted as a source
of investigative material for the potential crimes that it
revealed. It is undisputed that the state identified the cur-
rent victims from the nonresponsive material obtained in
execution of the first warrant and that the investigation
that led to the request for the second warrant was based
on evidence, including text messages, videos, and images
of individuals other than CB, that police found as a result
of their further investigation of the nonresponsive material
disclosed in the execution of the first warrant. Cf. State v.
Tardie, 319 Or App 229, 242, 509 P3d 705, rev den, 370 Or
303 (2022) (officer averred that he had not relied on sup-
pressed evidence unlawfully discovered under the second
warrant to request a third warrant). To allow the police to
benefit from that material for further investigation would be
inconsistent with Mansor, where the court said:
“[T]o protect the right to privacy and to avoid permitting
the digital equivalent of general warrants, we * * * hold that
462 State v. Serrano (A173250)
Article I, section 9, prevents the state from using evidence
found in a computer search unless a valid warrant autho-
rized the search for that particular evidence, or it is admis-
sible under an exception to the warrant requirement.”
363 Or at 188.
We recognize that Mansor does not deal directly
with the issue presented here; the Supreme Court did not
have before it in Mansor a question whether or to what
extent law enforcement personnel can use nonresponsive
or unauthorized material uncovered on a cell phone—
including evidence of other potential crimes—as a basis
for further investigation of and the issuance of a warrant
for a search related to those other crimes, that is, crimes
other than those for which the original warrant authorized
a search. But the court clearly was aware of that potential
circumstance. See id. at 214-18 (discussing Wheeler v. State,
135 A3d 282 (Del 2016), which reversed a defendant’s con-
viction for possession of digital child pornography based on
nonresponsive evidence discovered in the execution of an
unconstitutionally overbroad warrant for the search of the
defendant’s computer and other digital equipment as part
of an investigation into the defendant’s alleged witness
tampering).
We recently held in Bock that the use at trial of
images of a weapon on the defendant’s cell phone could not
be supported by the plain view doctrine, where the section of
the warrant directing a search for evidence of felon in pos-
session of a firearm was insufficiently particular and there-
fore invalid, because a firearm itself cannot be located on a
cell phone. 310 Or App at 337. We explained, citing Mansor,
363 Or at 220, that the breadth of a search required of dig-
ital material “is what renders the plain view doctrine inap-
plicable; the alternative would sanction the sort of general
warrant that the plain view doctrine was never meant to
authorize.” Bock (A169480), 310 Or App at 340.
Bock, like Mansor, emphasized the unique privacy
issues presented in searches of digital devices and high-
lighted the Supreme Court’s rationale for imposing addi-
tional limitations:
Cite as 324 Or App 453 (2023) 463
“The very nature of a digital device such as a cell phone
renders it a ‘repository with a historically unprecedented
capacity to collect and store a diverse and vast array of per-
sonal information.’ [Mansor, 363 Or] at 208. Accordingly,
to ensure that Article I, section 9, continued to fulfill its
purpose of protecting individuals’ privacy and avoided
‘sanctioning the undue rummaging that the particular-
ity requirement was enacted to preclude,’ an additional
limitation on the use of data falling outside the scope of
an electronic search warrant was necessary. Id. at 220
(internal quotation marks omitted). Specifically, the state
is prohibited from introducing into evidence any ‘infor-
mation obtained in a computer search if the warrant did
not authorize the search for that information, unless some
other warrant exception applies.’ Id. at 220-21.”
Bock (A169480), 310 Or App at 337. But like Mansor, Bock did
not address the issue presented here, whether nonrespon-
sive material discovered in plain view in a lawful search of
the digital material of a cell phone may provide a basis for
further investigation of the same digital material for crimes
other than those for which the warrant was issued. In our
view, in light of Mansor, the Supreme Court would say no.
Noting the purpose of Article I, section 9, to pro-
tect against “governmental intrusions,” the Supreme Court
has said that “[t]his right against intrusion should be strin-
gently protected by the courts.” State v. Davis, 295 Or 227,
243, 666 P2d 802 (1983). As the Supreme Court has long
recognized, the remedy for governmental intrusion upon the
personal right guaranteed under Article I, section 9, is “to
restore the parties to the position they would have been in”
prior to the governmental intrusion. State v. Craigen, 370
Or 696, 712, 524 P3d 85 (2023); Mansor, 363 Or at 221; see
also Davis, 295 Or at 237 (stating same, and noting court’s
adherence to that remedy since State v. Laundy, 103 Or 443,
204 P 958 (1922)). The court said in Mansor:
“[T]he privacy interests underlying Article I, section 9,
are best protected by recognizing a necessary trade-off
when the state searches a computer that has been law-
fully seized. Even a reasonable search authorized by a
valid warrant necessarily may require examination of at
least some information that is beyond the scope of the war-
rant. Such state searches raise the possibility of computer
464 State v. Serrano (A173250)
search warrants becoming the digital equivalent of general
warrants and of sanctioning the ‘undue rummaging that
the particularity requirement was enacted to preclude.’
Mansor, 279 Or App at 803 (internal quotation marks omit-
ted). Although such searches are lawful and appropriate,
individual privacy interests preclude the state from ben-
efiting from that necessity by being permitted to use that
evidence at trial. We thus conclude that the state should
not be permitted to use information obtained in a computer
search if the warrant did not authorize the search for that
information, unless some other warrant exception applies.
* * * Put differently, when the state conducts a reasonably
targeted search of a person’s computer for information pur-
suant to a warrant that properly identifies the information
being sought, the state has not unreasonably invaded the
person’s privacy interest, and the state may use the informa-
tion identified in the warrant in a prosecution or any other
lawful manner. But when the state looks for other informa-
tion or uncovers information that was not authorized by the
warrant, Article I, section 9, prohibits the state from using
that information at trial, unless it comes within an exception
to the warrant requirement.”
363 Or at 220-21 (emphasis added). The court emphasized
the constitutional privacy interest at stake in a search of a
person’s cell phone, quoting from its opinion in Davis:
“That approach is consistent with our explanation that
the purpose of rules requiring the suppression of evidence
gathered in violation of the constitution is to restore the
parties to the position they would have been in had the vio-
lation not occurred:
“ ‘[R]ules of law designed to protect citizens against
unauthorized or illegal searches or seizures of their per-
sons, property, or private effects are to be given effect
by denying the state the use of evidence secured in vio-
lation of those rules against the persons whose rights
were violated, or, in effect, by restoring the parties to
their position as if the state’s officers had remained
within the limits of their authority.’ ”
Mansor, 363 Or at 221 (quoting Davis, 295 Or at 237).
We recognize, as the state points out, that in Mansor
the court said that the nonresponsive material could not
be used at trial, id. at 221, and that the court did not have
Cite as 324 Or App 453 (2023) 465
before it and made no comment on whether the state could
use the nonresponsive material as a basis for further inves-
tigation. But we reject the state’s contention that the court’s
opinion showed that it intended to limit the use of the nonre-
sponsive material only in the instant trial. Defendant had a
privacy interest in the contents of his cell phone. Id. at 188.
If, as the Supreme Court said, the rationale of avoiding an
unreasonable invasion of a person’s privacy interest protects
the nonresponsive material from being used at trial because
the constitution requires that “the parties [be restored] to
their position as if the state’s officers had remained within
the limits of their authority,” id.; see State v. Tyler, 218 Or
App 105, 109, 178 P3d 282 (2008) (“The rationale for sup-
pressing unlawfully obtained evidence under Oregon law
is remedial—that is, its purpose is to restore the defen-
dant to the same position as if the government had stayed
within the law.”), we think that it is likely that the court
would also conclude that, in the absence of an independent
source, the nonresponsive material cannot provide a basis
for further investigation. If, as the court held in Mansor, a
defendant must be restored to the position he was in but for
the discovery of the nonresponsive material, the nonrespon-
sive material could not provide a source for investigation of
defendant’s potential crimes. Thus, the second warrant was
unlawful, and the trial court erred in denying defendant’s
motion to suppress.6
The state asserts that we should hold that Mansor
prohibits only the use of nonresponsive material in judicial
proceedings such as a trial or an application for a warrant
and does not require that police “turn a blind eye” to crim-
inal activity. In the state’s view, nonresponsive informa-
tion learned from data permissibly observed in executing a
search warrant may be used for further investigation, even
6
Based on our understanding of Mansor, law enforcement personnel may not
use nonresponsive material as a basis for initiating an investigation of potential
crimes revealed by that nonresponsive material. However, Mansor does not pre-
vent law enforcement personnel from investigating those potential crimes if the
origin of the investigation is a source independent of and completely separate
from the nonresponsive material. See Tardie, 319 Or App at 241 (discussing inde-
pendent source doctrine). The state does not contend that the origin of its inves-
tigation was independent of the nonresponsive material found on defendant’s cell
phone.
466 State v. Serrano (A173250)
if that data is outside the scope of the warrant’s search com-
mands in the way contemplated by Mansor’s use restriction.
We reject the contention. As explained above, in Mansor, the
court held that “Article I, section 9, prevents the state from
using evidence found in a computer search unless a valid
warrant authorized the search for that particular evidence”
in order to “protect the right to privacy and to avoid permit-
ting the digital equivalent of general warrants,” to “restore
the parties to the position they would have been in” prior to
the governmental intrusion. 363 Or at 188, 221. That princi-
ple holds true under the Fourth Amendment as well, which
requires “ ‘not merely [that] evidence so acquired shall not
be used before the Court but that it shall not be used at all.’ ”
Wong Sun v. United States, 371 US 471, 485, 83 S Ct 407, 9
L Ed 2d 441 (1963) (emphasis added; quoting Silverthorne
Lumber Co. v. United States, 251 US 385, 392, 40 S Ct 182,
64 L Ed 319 (1920)).
As we understand Mansor, preventing the state
from “using” evidence means not permitting use of it: not
at trial, not to obtain a warrant as part of an investigation,
or, as in this case, not as the basis for a new investigation
that ultimately leads to probable cause for a new warrant.
If nonresponsive evidence found in the warranted search of
a computer can provide a basis for initiating a new investi-
gation, leading to a new warrant, then the state has “used”
that evidence and permitted the digital equivalent of a gen-
eral warrant, and the right to privacy afforded by Article I,
section 9, has been abrogated.7
Having concluded that the trial court erred in deny-
ing defendant’s motion to suppress, we must now address
the state’s argument that the error was harmless. A trial
court’s error is harmless if there is “little likelihood” that
it affected the jury’s verdict. State v. Lachat, 298 Or App
579, 589, 448 P3d 670 (2019), rev den, 366 Or 257 (2020). It
7
Of course, not all investigative use of nonresponsive material is barred.
For example, if the data revealed a crime in progress or an intended crime, then
exigent circumstances could support further investigation without a warrant.
State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (noting the “exigent cir-
cumstances” exception “allows the police to conduct a search without a warrant
if the search is both supported by probable cause and conducted under exigent
circumstances”).
Cite as 324 Or App 453 (2023) 467
is true, as the state contends, that the convictions at issue
here, with the exception of the charge of using a child in a
display of sexually explicit conduct, did not include as an
element the material discovered on defendant’s cell phone,
and that there was other evidence, including the testimony
of victims, that supplied the elements of the charges. Thus,
the state contends, defendant’s convictions are unlikely to
have been based on the evidence obtained from defendant’s
cell phone. But all of the charges in this case stem from the
investigation triggered by discovery of the nonresponsive
material on defendant’s cell phone. Police discovered the
existence and identities of II, KT, and AG because of that
investigation. In the absence of the nonresponsive material,
the need for any follow-up investigation would not have been
otherwise discovered.
Additionally, the state introduced multiple pieces
of evidence from defendant’s phone, including nude images
of II taken without her knowledge or consent, and sexually
explicit videos of AG that formed the bases of the charges of
use of a child in a sexually explicit display and encouraging
child sexual abuse. In addition to depicting the underlying
sexual acts, the videos also contained evidence of AG’s age
and defendant’s awareness of AG’s age. We cannot say that
the admission of that evidence had little likelihood of affect-
ing the verdict. The denial of the motion to suppress there-
fore was not harmless, because the charges in this case stem
from the investigation triggered by discovery of the non-
responsive material on defendant’s cell phone, and highly
probative evidence used to prove the state’s case came from
the nonresponsive material discovered on defendant’s cell
phone.
We emphasize our awareness, as the concurrence
points out, that we already expect a lot from law enforce-
ment in terms of knowing how to apply constitutional con-
cepts such as reasonable suspicion, probable cause, freedom
to leave, and the invocation of rights, and that our holding
will have practical implications for the conduct of investiga-
tions by law enforcement personnel. But under the “fruit of
the poisonous tree” doctrine, law enforcement is routinely
expected not to “use” information in its possession. See, e.g.,
Silverthorne Lumber Co., 251 US at 392 (“The essence of a
468 State v. Serrano (A173250)
provision forbidding the acquisition of evidence in a certain
way is that not merely evidence so acquired shall not be
used before the Court but that it shall not be used at all.”).
We acknowledge that the nuances of this area of law relat-
ing to digital searches are complex and developing.
III. DEFENDANT’S CHALLENGE TO THE DENIAL
OF HIS MOTION FOR A JUDGMENT OF AQUITTAL
We turn to defendant’s third assignment of error, in
which he contends that trial court erred when it denied his
motion for judgment of acquittal on Count 5. Defendant was
charged and convicted in Count 5 of use of a child in a sexu-
ally explicit display with respect the victim AG, who was 17
years old at the time of the offense.
A person commits that offense “if the person employs,
authorizes, permits, compels or induces a child to partici-
pate or engage in sexually explicit conduct for any person to
observe or to record in a visual recording.” ORS 163.670(1).
Here, the state charged that defendant “compelled” AG to
engage in sexually explicit conduct that defendant recorded.
The evidence at trial was that AG willingly engaged in sex-
ually explicit conduct with defendant and also willingly
allowed defendant to take video of their sexual conduct.
Defendant contends that the evidence cannot support a find-
ing that defendant compelled AG to participate in a sexually
explicit recording, as the Supreme Court defined it in State
v. Marshall, 350 Or 208, 220, 253 P3d 1017 (2011), which
analyzed the term “forcible compulsion” as used in ORS
163.427(1)(a), defining sexual abuse in the first degree.8
We need not address whether “compel,” as the court
defined it in Marshall for purposes of ORS 163.427(1)(a), has
the same meaning in ORS 163.670(1). On appeal, the state
does not assert that the evidence would support a finding
8
In Marshall, the Supreme Court said that “to compel” “conveys a range of
meanings, centered around achieving compliance or submission by some level
of force.” The court explained that the force “need not [have risen] to the level of
violence,” but it “must [have been] sufficient to ‘compel’ the victim, against the
victim’s will, to submit to or engage in the sexual contact.” Id. at 225.
Here, defendant contends, because the evidence could not support a finding
that defendant forced AG against her will to engage in sexually explicit conduct,
the state has failed to establish that element of the offense.
Cite as 324 Or App 453 (2023) 469
of compulsion, and we agree that it would not. We further
reject the state’s suggestion that the means of committing
the offense listed in ORS 163.670(1) are interchangeable
descriptions rather than distinct means of committing the
offense. As the court held in State v. Medina, 357 Or 254,
271-72, 355 P3d 108 (2015), when the differences in the
means by which an offense can be committed render them
“distinct acts,” the state is bound by the substantive alle-
gation in the indictment. Id. Here, the state alleged that
defendant had committed the offense of use of a child in
a sexually explicit display by compelling AG. At trial, the
state’s theory was that defendant had compelled the vic-
tim to act, and the state relied exclusively on that alleged
means. The jury received three instructions relating to the
offense that explained the state’s burden to show that defen-
dant had compelled the sexually explicit conduct. The state
is bound by the substance of its allegation as well as its the-
ory at trial. See State v. Samuel, 289 Or App 618, 410 P3d
275 (2017) (state not permitted to prove a different theory of
defendant’s felon status than it alleged in the indictment in
prosecution for felon in possession of firearm).9
Because we agree with defendant (and with the
state’s implicit concession) that the evidence does not sup-
port a finding that defendant “compelled” AG, we conclude
that the trial court erred in denying his motion for a judg-
ment of acquittal on Count 5. Thus, defendant’s conviction
on Count 5 must be reversed.
IV. DEFENDANT’S CHALLENGE TO THE TRIAL
COURT’S DENIAL OF HIS MOTION TO SEVER
In his fourth assignment of error, defendant con-
tends that the trial court erred in declining to sever trial of
the charges relating to AG from those relating to the adult
victims, II and KT. The trial court found that the circum-
stances of the charges, and the conduct and the evidence on
9
We note the unfair prejudice to a defendant if, having been charged and
tried on a theory of compelling the victim to act, the defendant could be convicted
based on less forceful conduct of inducing, permitting, or authorizing the victim
to act. State v. Boitz, 236 Or App 350, 356, 236 P3d 766 (2010) (declining to deter-
mine whether a variance concerned a material element because, even if it did not,
the variance was impermissible because it was prejudicial).
470 State v. Serrano (A173250)
which they were based, were sufficiently similar that the
charges could be joined. We have reviewed the record and
conclude without further discussion that the trial court did
not err.10
Conviction on Count 5 reversed; convictions on
Counts 1, 3, 4, 6, 7, and 8 reversed and remanded; otherwise
affirmed.
Aoyagi, J., concurring.
In State v. Mansor, 363 Or 185, 220, 223, 421 P3d
323 (2018), the Supreme Court held that when law enforce-
ment conducts a reasonable forensic examination of a com-
puter pursuant to a lawful warrant, and the examina-
tion “reveal[s] information that is beyond the scope of the
warrant”—by virtue of the inherent nature of a forensic
examination, rather than any overreaching by law enforce-
ment—“a defendant’s Article I, section 9, privacy rights pre-
vent the state from using such information unless it comes
within an exception to the warrant requirement.”
The Supreme Court left open in Mansor whether
and to what extent the plain-view doctrine might apply in
such a situation. See id. at 210-11. We closed that door in
State v. Bock (A169480), 310 Or App 329, 340, 485 P3d 931
(2021), holding that the plain-view doctrine is “inapplicable”
to computer searches. The Supreme Court also arguably left
open in Mansor whether incidentally found information may
be used for any purposes other than as evidence at trial.
See Mansor, 363 Or at 220-21 (focusing on use of evidence
at trial). We close that door in this case and its companion
case, holding that essentially any “use” of such information
10
In light of our conclusion that the trial court erred in denying defendant’s
motion to suppress, the case must be remanded for a new trial. We note, however,
that the state concedes error on defendant’s fifth and sixth assignments of error,
in which defendant contends that his convictions of first-degree rape (Counts
1 and 3), which were based on nonunanimous verdicts, must be reversed and
remanded under Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 1391, 206 L Ed
2d 583 (2020). The state also concedes error on defendant’s seventh assignment
contending that the trial court erroneously instructed the jury that it could con-
vict defendant on less than a unanimous verdict. However, because the verdicts
on the remaining counts were unanimous, the instructional error was harmless
as to those counts. See, e.g., State v. Flores Ramos, 367 Or 292, 333-34, 478 P3d
515 (2020).
Cite as 324 Or App 453 (2023) 471
is prohibited, including as an impetus for investigation. See
324 Or App at 464-65 & n 6 (holding that the second war-
rant was unlawful, where it was obtained after investigat-
ing “nonresponsive material” found in executing the first
warrant, and noting that “law enforcement personnel may
not use nonresponsive material as a basis for initiating an
investigation of potential crimes revealed by that nonre-
sponsive material”); State v. Serrano (A174829), 324 Or App
475, 476, 526 P3d 773 (2023) (reversing denial of motion to
suppress evidence that “was derived from an investigation
that had its source in material incidentally uncovered from
a search of defendant’s cell phone”).
I cannot fault the majority for relying on Mansor to
conclude that any “use” of information that was found inci-
dentally during a lawful search of an electronic device—but
that was beyond the scope of the warrant under which that
device was searched—is prohibited. In Mansor, the state
used incidentally found information as evidence at trial. 363
Or at 188. In concluding that such evidence should have been
suppressed, the court’s opinion sometimes refers to “use at
trial,” see, e.g., id. at 208, 210, and other times refers to “use”
more generally, see id. at 188, 205, 223. For example:
“We thus conclude that the state should not be permitted
to use information obtained in a computer search if the
warrant did not authorize the search for that information,
unless some other warrant exception applies. See [Orin S.
Kerr, Executing Warrants for Digital Evidence: The Case for
Use Restrictions on Nonresponsive Data, 48 Tex Tech L Rev
1, 24 (2015)] (suggesting use restrictions for data ‘nonre-
sponsive’ to the warrant). Put differently, when the state
conducts a reasonably targeted search of a person’s com-
puter for information pursuant to a warrant that properly
identifies the information being sought, the state has not
unreasonably invaded the person’s privacy interest, and
the state may use the information identified in the war-
rant in a prosecution or any other lawful manner. But when
the state looks for other information or uncovers informa-
tion that was not authorized by the warrant, Article I, sec-
tion 9, prohibits the state from using that information at
trial, unless it comes within an exception to the warrant
requirement.”
Id. at 221 (emphases added).
472 State v. Serrano (A173250)
Of course, the Supreme Court had no need to con-
sider in Mansor the outer limits of the use restriction that it
was adopting, because Mansor involved use at trial, which
is the most obvious type of use to prohibit. I am not as con-
fident as the majority that, were the Supreme Court to
address other types of use, it would necessarily adopt the
broad use restriction that we do in the present case. See 324
Or App at 464-65. In my view, it would be defensible to treat
information that was lawfully obtained differently from
information that was unlawfully obtained, so long as the
relevant considerations are appropriately balanced. Other
than Mansor, which I do not read as resolving the present
issue, existing case law addresses only unlawfully discov-
ered evidence. E.g., State v. Craigen, 370 Or 696, 711, 524
P3d 85 (2023) (“Under Oregon constitutional law, when the
state violates an individual’s constitutional right, the state
cannot use evidence obtained as a result of that violation.”).
Notably, the use-restriction model adopted in Mansor
derives from the academic writings of Professor Orin Kerr.
See Mansor, 363 Or at 221 (citing with approval Orin S.
Kerr, Executing Warrants for Digital Evidence: The Case for
Use Restrictions on Nonresponsive Data, 48 Tex Tech L Rev 1
(2015)). As Kerr aptly states, “If courts adopt a use restric-
tion, the next issue is what counts as ‘use.’ ” Kerr, 48 Tex
Tech L Rev at 29. Kerr advocates for the prohibition of two
types of “use” of nonresponsive data found incidentally in
a lawful search of an electronic device: (1) use of the data
“in court to prove the suspect’s crime,” which Kerr describes
as “a core case of use”; and (2) use of the data “as a basis
for cause to justify an additional search or seizure for more
responsive data”—“either by copying it and submitting it in
the warrant application or simply by describing its discov-
ery in an affidavit[.]” Id. Beyond those two categories, “[t]he
outer bounds of a use restriction are less certain.” Id. This
case falls along that uncertain boundary—images that were
incidentally found on defendant’s cell phone during a lawful
warranted search prompted an investigation that led offi-
cers to new victims and new evidence, which was then used
to support a second warrant.1
1
The affidavit in support of the second warrant is unclear as to the exact cir-
cumstances of the officers viewing the incidentally discovered data that spurred the
Cite as 324 Or App 453 (2023) 473
Given how Mansor is written, I am inclined to look
to the Supreme Court to clarify its own intentions as to the
breadth of the use restriction announced in that case. For
that reason, I join the majority, even though I have some
concerns about the broad use restriction that we adopt in
this case. I am particularly concerned about the unique
practical challenges that our holding poses for law enforce-
ment. Historically, law enforcement could rest assured that,
so long as officers respected the constitutional rights of
citizens, including lawfully obtaining and executing war-
rants, the information that they gathered generally would
be usable for investigative purposes and at trial. Conversely,
any information obtained or derived from the violation of
a citizen’s constitutional rights likely would not be usable.
The latter limitation might be frustrating to law enforce-
ment at times, particularly when a constitutional violation
was unintentional, but it is an intuitively understandable
consequence of police overreaching.
Together, Mansor, Bock, and Serrano change that
fundamental precept. The practical import of this new line
of cases is that law enforcement officers must turn a blind
eye to criminal activity that lawfully comes to their atten-
tion. Such a rule does not have the same intuitive appeal
as the longstanding “fruit of the poisonous tree” principle.
See, e.g., Craigen, 370 Or at 713 (“The state cannot bene-
fit from a violation of a defendant’s constitutional rights.”);
State v. Arreola-Botello, 365 Or 695, 714, 451 P3d 939 (2019)
(recognizing the longstanding principle that “evidence will
be suppressed if the evidence was the product of an uncon-
stitutional act”). The tree is not poisonous, the state is not
benefitting from any illegality, and yet any fruit will still be
suppressed.
Moreover, law enforcement officers will now have to
regularly assess the lawful scope of warrants. Otherwise,
they will end up wasting resources by investigating crimes
based on information that was lawfully obtained but should
have been ignored, leading to the suppression of all of the
results of their investigation. That puts law enforcement in
new investigation. Those types of factual details could be relevant to suppression, if
the Supreme Court were to adopt a more nuanced use restriction than we do.
474 State v. Serrano (A173250)
a new position. Until now, law enforcement officers could
largely look to judges to ensure valid warrants—that is
why warrants are issued by judges—with a resultingly low
risk that evidence found during a warranted search would
be suppressed. Now, with respect to searches of electronic
devices such as computers and cell phones, officers will be
called upon to assess for themselves, without judicial over-
sight, whether information found during a lawful search
may be “used” for investigative purposes.
We already expect a lot from law enforcement in
terms of knowing how to apply constitutional concepts like
reasonable suspicion, probable cause, freedom to leave, invo-
cation of rights, and the like. However, I suspect that officers
will face new challenges in having to evaluate whether it
is safe to rely on information lawfully found during a war-
ranted search of a computer or cell phone in pursuing an
investigation or, conversely, whether doing so will result in
a pointless investigation of an effectively unprosecutable
crime. I therefore hope that, if the Supreme Court disagrees
with our understanding of Mansor, it will act quickly to
clarify the scope of the prohibition on the state “using” non-
responsive information found incidentally on an electronic
device during a lawful warranted search.
Accordingly, I concur.