State v. Hernandez, 481 P.3d 959

Background

Police observed Hernandez driving a red Honda speeding with expired insurance; a gray Honda impeded the officer and Hernandez fled after turning into a parking lot.
Officer Goodman saw Hernandez assume a "pistol shooting stance," observed a dark object in his hand, and Hernandez dropped and later retrieved a Colt 1911 pistol before being arrested. Officers recovered two cell phones and a woman’s watch at the scene.
Detective Howden obtained a warrant to search the two phones, based largely on (a) the arrest facts, (b) two recorded jail calls in which Hernandez said he "threw" his phone, and (c) Howden’s training/experience that suspects "often" use phones to communicate about firearms and take photos of weapons. The magistrate approved the warrant and officers seized texts, Facebook messages, and pictures.
Hernandez moved to suppress the phone evidence under Article I, section 9 (Oregon Constitution); the trial court denied the motion, and Hernandez was convicted of two elude counts, attempted aggravated murder (Count 2), unlawful use of a weapon (Count 3), and felon in possession of a firearm (Count 4).
On appeal Hernandez argued the warrant lacked probable cause and was overbroad, contested the trial court’s denial of his midtrial jury-waiver request, and later raised a Ramos claim about nonunanimous jury instructions. The Court of Appeals reversed Counts 2–4, vacated and remanded Counts 1 and 6 for reconsideration of jury waiver, and otherwise affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hernandez)	Held
Validity of phone search warrant / probable cause under Article I, §9	Howden’s affidavit and training/experience plus Hernandez’s jail calls gave a non-speculative basis to search phones for communications, images, and location info related to weapons and intent.	Affidavit relied on generalities (what "often" happens) and did not connect Hernandez’s phones to the crimes; phones were not shown to have played a role in the events.	Warrant insufficient: bare assertions about what suspects "often" do cannot establish a probability that evidence of these crimes would be on Hernandez’s phones; suppression denial was error.
Harmlessness of admitting phone evidence	Even without phone evidence, ample other evidence tied Hernandez to the firearm; any error was harmless.	Phone messages and an incriminating photo were used heavily at trial and likely affected the jury’s verdicts on Counts 2–4.	Error was not harmless as to Counts 2–4 given the state’s reliance on texts/Facebook messages and photo; convictions on Counts 2–4 reversed and remanded.
Midtrial request to waive jury (Article I, §11)	Trial court reasonably considered judicial economy (jury had already heard two days) and could deny waiver; denial was discretionary.	Court failed to apply Harrell/Wilson factors and did not record an assessment of whether a bench trial would protect Hernandez’s rights.	Record does not show court analyzed all Harrell/Wilson factors (including whether bench trial would protect rights); vacate and remand Counts 1 and 6 for reconsideration of waiver.
Ramos / nonunanimous jury instruction and verdict on Count 2	State later conceded Count 2 should be reversed under Ramos; for unanimous verdicts (Counts 1 & 6) Flores Ramos and Kincheloe make the instructional error harmless.	Hernandez argued plain structural error in instructing/accepting nonunanimous verdict on Count 2.	Because Counts 2–4 are reversed on suppression grounds, the court did not reach Ramos for those counts; unanimous convictions (Counts 1 & 6) affirmed under Flores Ramos/Kincheloe.

Key Cases Cited

State v. Goodman, 328 Or 318 (1999) (probable cause standard under Article I, §9; magistrate may rely on affidavit facts and reasonable inferences)
State v. Williams, 270 Or App 721 (2015) (generalized assertions that evidence "often" is present are insufficient to show probability that evidence will be found in a particular location)
State v. Davis, 336 Or 19 (2003) (harmless-error inquiry focuses on whether the error likely affected the verdict)
State v. Harrell/Wilson, 353 Or 247 (2013) (framework and factors trial courts must consider when deciding midtrial jury-waiver requests)
Ramos v. Louisiana, 590 U.S. _ (2020) (jury unanimity requirement for serious offenses under Sixth Amendment)
State v. Flores Ramos, 367 Or 292 (2020) (Oregon Supreme Court: nonunanimous-instruction error not structural; may be harmless as to unanimous convictions)
State v. Kincheloe, 367 Or 335 (2020) (same)