State v. Frischman

When one provision of a warrant is determined to be impermissibly overbroad in the context of a motion to suppress, “the impermissibly overbroad portion of the warrant may be excised, and the balance of the warrant upheld and that only those items seized under the invalid portion of the warrant must be suppressed.” State v. Burnham, 289 Or App 783, 785-786, 412 P3d 1233 (2018).

The State appealed an order granting Defendant’s motion to suppress. The State assigned error to the trial court’s suppression of all evidence after originally entering an order granting suppression in part. On appeal, the State argued that the trial court erred by suppressing all evidence because the invalid portion of the warrant should have been excised while the evidence obtained pursuant to the valid portions of the warrant should not have been suppressed. In response, Defendant argued that the State failed to preserve its argument that the invalid portion of the warrant could be excised. When one provision of a warrant is determined to be impermissibly overbroad in the context of a motion to suppress, “the impermissibly overbroad portion of the warrant may be excised, and the balance of the warrant upheld and that only those items seized under the invalid portion of the warrant must be suppressed.” State v. Burnham, 289 Or App 783, 785-786, 412 P3d 1233 (2018). The Court found that a remand to the trial court is required to determine the admissibility of the evidence pursuant to the valid portions of the warrant, as well as to determine which evidence was obtained based on the invalid portions of the warrant, thus requiring suppression. Reversed and remanded.