State v. McClatchey, 314 P.3d 721

Background

Police found defendant asleep in a motel room with $785, an LG cell phone on the bed, and a coin pouch containing small baggies and ~2 grams of methamphetamine; defendant said the phone and money were his but denied the pouch was his.
Officers seized the phone and, a few days later, a forensic examiner (Williams) examined it without a warrant and logged drug-related text messages. No warrant was obtained at that time.
Weeks later police arrested defendant on an outstanding warrant, seized Gibson’s Blackberry (which contained drug-related texts) and other drug/paraphernalia, and later obtained a warrant to search the LG phone; Detective Smith’s warrant affidavit relied in part on Williams’s earlier, warrantless examination.
Smith executed the warrant and recovered drug-related texts from the LG phone; those texts were used to charge defendant with two counts of unlawful delivery of methamphetamine (among other counts).
At trial the court denied defendant’s suppression motion because defendant had not claimed a privacy interest in the phone; the court also denied a mistrial motion after an officer testified that defendant said he “didn’t want to say anything” when asked his name.
The jury convicted on all counts. On appeal the court reversed as to the two delivery counts (remanding for new trial and resentencing), holding the suppression denial was erroneous, but affirmed denial of the mistrial motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court properly denied suppression because defendant did not assert a privacy interest in the LG phone	State: denial was harmless because the later warrant supported the search (probable cause)	Defendant: trial court erred; defendant need not assert a privacy interest and the state must prove no Article I, §9 violation; evidence from the warrantless search tainted later search unless state proves inevitable discovery/independent source/attenuation	Reversed: court erred to deny suppression for lack of claimed privacy interest; state bore burden to show the later search was untainted and did not do so; remand for new trial on delivery counts
Whether the later warrant cured the earlier unlawful, warrantless search of the phone	State: warrant affidavit (even excising Williams’s unlawful input) still furnished probable cause; thus evidence admissible	Defendant: where property was first searched unlawfully, state must prove evidence was untainted (inevitable discovery, independent source, or attenuation)	Court: probable-cause-for-warrant analysis alone is insufficient here; state did not argue or prove non-taint doctrines, so suppression should have been granted
Whether officer’s testimony that defendant “didn’t want to say anything” required mistrial or curative instruction	State: testimony arose in arrest context re: outstanding warrant; jurors unlikely to draw inculpatory inference	Defendant: statement referenced invocation of rights; jury could draw adverse inference of guilt; mistrial or instruction required	Affirmed: trial court did not abuse discretion; statement was isolated and contextualized (warrant arrest), unlikely to prompt prejudicial inference

Key Cases Cited

State v. Brown, 348 Or. 293 (discussion that courts suppress evidence only when Article I, §9 rights violated)
State v. Tucker, 330 Or. 85 (state bears burden to show abandonment of possessory/privacy interest)
State v. Morton, 326 Or. 466 (defendant may challenge seizure even after denying ownership)
State v. Johnson, 335 Or. 511 (when property was first searched unlawfully, state must prove evidence was untainted by inevitable discovery/independent source/attenuation)
State v. White, 303 Or. 333 (prosecutorial comments about exercise of rights can require mistrial only if likely to produce prejudicial inferences)
State v. Beisser, 258 Or. App. 326 (isolated references to invocation of rights do not necessarily require mistrial)