State v. Frischman, 445 P.3d 946

State sought to suppress evidence seized in a warranted search of defendant's person, home, and car; trial court initially granted partial suppression, then (after Burnham I) granted suppression of all evidence.
State appealed the order suppressing all evidence; appellate review is for legal error on whether invalidating one warrant provision requires suppression of evidence seized under other valid provisions.
This court's later decision in Burnham II held that an overbroad portion of a warrant may be excised and the remainder upheld, requiring suppression only of items seized under the invalid portion; remand was required for factual findings about particular seizures.
The state argued Burnham II requires reversal and reinstatement of the original partial-suppression order; defendant argued the state failed to preserve the excision argument and, alternatively, that the affidavit was stale or lacked probable cause.
The court found the state preserved its excision argument, deferred to the magistrate on probable cause for the valid portions, and concluded those portions need not be suppressed; it remanded for factual determinations about which items were seized under the invalid portion and whether any seizures were tainted.

Issue	State's Argument	Lagesen (Defendant)'s Argument	Held
Whether invalidating one warrant provision requires suppression of evidence seized under other valid provisions	Invalid portion can be excised; only items seized under invalid portion must be suppressed	All evidence should be suppressed because state didn't preserve excision argument or affidavit was stale/lacked probable cause	Court held excision permitted per Burnham II; valid-portion seizures need not be suppressed absent factual showing they were tainted
Whether the state preserved its excision argument	Preserved; record supports preservation	Argued state failed to preserve the argument	Court found preservation adequate
Whether magistrate had probable cause (or nonstale probable cause) for other warrant provisions	Magistrate's probable-cause findings should be deferred to; valid portions stand	Argued affidavit was stale or lacked probable cause for remaining items	Court deferred to magistrate and found no basis to displace probable-cause determinations for valid portions
Proper disposition/remedy after partial invalidity of warrant	Reinstate trial court's original partial-suppression order and admit items seized under valid portions; remand for fact-finding on specific seizures	Affirm suppression of all evidence	Court reversed the full suppression order and remanded for factual determinations about which items were seized under invalid portion and any taint issues

State v. Burnham, 287 Or. App. 661, 403 P.3d 466 (Or. Ct. App. 2017) (earlier Burnham decision relevant to warrant overbreadth)
State v. Burnham, 289 Or. App. 783, 412 P.3d 1233 (Or. Ct. App. 2018) (Burnham II: overbroad warrant portion may be excised; remand for factual findings)
State v. Chase, 219 Or. App. 387, 182 P.3d 274 (Or. Ct. App. 2008) (deference to issuing magistrate's probable-cause determination)