OR: Cell phone SW was fatally overbroad for scope of search

This cell phone warrant was based on probable cause, and it was particular as to drug related information with a specific time period. However, it was overbroad because it, as the state argued, essentially let the state seize anything else that it found on the phone as a plain view, and that made fatally overbroad. State v. Gaskill, 340 Or. App. 459 (May 14, 2025):

The warrant in this case failed to describe the evidence sought with sufficient specificity. The warrant authorized a search for evidence in defendant’s residence, vehicle, cell phone, or on his person which “may include, but is not limited to” certain listed search categories.
By its plain language, the warrant was expressly not limited to any particular types of evidence. The warrant did not provide “clear limitations” on the material subject to search and seizure, which “improperly requires the executing officer to employ discretion in deciding what to search or seize.” State v. Vesa, 324 Or App 674, 687, 527 P3d 786 (2023) (brackets omitted). The lack of specificity risked “undue rummaging” by executing officers. Curry, 336 Or App at 88. We conclude that the warrant was not sufficiently specific, and therefore did not satisfy the particularity requirement of Article I, section 9.

We finally address the appropriate remedy. As noted, defendant entered a conditional guilty plea under ORS 135.335(3) in Case No. 21CR55357, which reserved his right to appeal the trial court’s rulings in that case. Having now prevailed on appeal, defendant has the right to withdraw that plea if he so chooses. ORS 135.335(1). If he withdraws the plea, there may be further litigation regarding the scope of the evidence that should be suppressed. Both sides contend that the scope of that suppression should be decided on remand. We agree.

In sum, we conclude that the affidavit established probable cause for the search. Moreover, the search category authorizing the search of defendant’s cell phones was sufficiently particular. However, we further conclude that the warrant lacked sufficient specificity and was therefore invalid. The trial court erred in denying defendant’s motion to suppress in Case No. 21CR55357. Defendant was sentenced together in both cases, so we remand for resentencing in Case No. 20CR32110. See Vesa, 324 Or App at 687 (providing the same remedy in similar circumstances).