State v. Turay

After finding that valid search commands can be severed and assessed independently from invalid search commands, the trial court must hold a hearing so that it "can determine what evidence is admissible pursuant to the valid portions of the warrant and what evidence must be suppressed because it was obtained based on the invalid portion of the warrant." State v. Frischman, 298 Or App 186, 188-89, 445 P3d 946, rev den, 365 Or 721 (2019).

Defendant appealed a conviction of one count of compelling prostitution. Defendant raised three assignments of error, though only one was addressed: the trial court's denial of Defendant's motion to suppress evidence discovered during a search of his cell phone. On appeal, Defendant argued that the warrant to search the phone was not supported by probable cause and, even if it was, it lacked the particularity required by Article I, section 9, of the Oregon Constitution. In response, the State argued that some of the commands listed in the search warrant were sufficiently specific under State v. Mansor and the commands could be tied to the evidence in question. After finding that valid search commands can be severed and assessed independently from invalid search commands, the trial court must hold a hearing so that it "can determine what evidence is admissible pursuant to the valid portions of the warrant and what evidence must be suppressed because it was obtained based on the invalid portion of the warrant." State v. Frischman, 298 Or App 186, 188-89, 445 P3d 946, rev den, 365 Or 721 (2019). Here, the Court held that some of the commands complied with the particularity requirement of Article I, section 9, but not all of them. The Court reasoned that the record did not give sufficient information for it to determine what evidence was derivative of the valid portions and what was derivative of the invalid portions. Vacated and remanded.