State v. Yaeger

493 P.3d 579, 314 Or. App. 97

Opinion

On appellant’s petition for reconsideration filed June 10; reconsideration allowed, former opinion (311 Or App 626, 492 P3d 668) modified and adhered to as modified August 18, 2021

STATE OF OREGON, Plaintiff-Respondent, v. JEFFREY CHRISTIAN YAEGER, Defendant-Appellant. Deschutes County Circuit Court 16CR17252; A164641 493 P3d 579

A. Michael Adler, Judge. Ernest Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Senior Deputy Defender, for petition. No response filed. Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge. PER CURIAM Reconsideration allowed; former opinion modified and adhered to as modified. 98 State v. Yaeger

PER CURIAM In State v. Yaeger, 311 Or App 626, 651, 492 P3d 668 (2021), we addressed the admissibility of four search warrants after holding that post-prison supervision officers unlawfully interrogated defendant and that the discovery of defendant’s cellphones was a product of the Miranda viola- tion. We concluded that, because the third and fourth war- rants depended on information from an SD card, which we had concluded was lawfully obtained, those warrants were valid. Defendant petitions for reconsideration, pointing out that it was an oversight on our part to conclude that the fourth warrant, which was to search phones that were obtained unlawfully as a result of Miranda violation, was valid. We agree. Regardless of the sufficiency of probable cause to search defendant’s cellphones, a warrant cannot authorize the search of unlawfully obtained property. We therefore allow reconsideration of our opinion and modify the text of the penultimate paragraph to read as follows (emphasis indicates modified and added text): “Consequently, we conclude that, even without the tainted evidence, the remaining evidence listed in the war- rant application is sufficient for us to conclude that there was more than a mere possibility that evidence of child por- nography or unlawful contact with a child would be discov- ered on the SD card. That is, there was enough evidence to support probable cause. However, because the subsequent search warrant application to search defendant’s Gmail and Instagram accounts depended on the discovery of informa- tion contained in the seized personal papers of defendant, that search warrant lacked probable cause. Because the third search warrant depended on information discovered from the SD card, that warrant was valid. The fourth war- rant, however, was a warrant to search defendant’s unlaw- fully obtained phones and was therefore not valid.” Further, we modify the last sentence of the last paragraph to add the emphasized text: “The third and fourth warrants were supported by prob- able cause, but the fourth warrant was not valid, because it sought to search defendant’s unlawfully obtained phones.” Reconsideration allowed; former opinion modified and adhered to as modified.