State v. Thompson, 518 P.3d 923

Background

Defendant participated in an armed robbery (knife) during which the victim shot the defendant; defendant later sought hospital treatment and used false identification.
Officer Robertson, recognizing defendant and suspecting both identity theft and evidence related to the shooting, seized defendant’s cellphone at the hospital without a warrant, citing a concern the phone or data might be destroyed.
Police retained the phone for five days before applying for and obtaining a search warrant; the subsequent search revealed call logs and a text linking defendant to an accomplice (Pree), which officers later used during a custodial interview.
Defendant moved to suppress the phone and all derivative evidence; the trial court denied suppression, a jury convicted defendant of robbery and related charges, and the Court of Appeals affirmed in a split decision.
The Oregon Supreme Court reviewed: it held the five-day warrantless retention violated Article I, § 9 of the Oregon Constitution, found the interview statements were derivative and preserved for review, but concluded admission of that evidence was harmless error and affirmed the conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Lawfulness of warrantless seizure/retention of phone	Initial seizure and five-day retention were justified by probable cause and exigency (risk of destruction); retention was part of active investigation	Warrantless retention for five days was unreasonable; any exigency ended once police could have obtained a warrant within hours	Retention for five days was unlawful under Article I, § 9; exigency did not justify continued seizure when a warrant could reasonably have been sought sooner
Whether phone search/results were tainted by unlawful retention	The phone was later searched under a warrant; evidence is valid and independent; retention was reasonable in context	Search was tainted by prior unlawful retention; derivative evidence must be suppressed	Defendant established a minimal nexus; evidence from the phone was affected by the unlawful detention and burden shifted to the state to show lack of taint
Whether interview statements were derivative and preserved	State: defendant’s motion to suppress ("all derivative evidence") was too nonspecific as to particular interview statements	Defendant: he preserved suppression of interview statements (argued in limine and on the record); statements after officers referenced phone contents were derivative	Court held defendant adequately preserved the claim; statements made after officers referenced phone contents were derivative of the unlawful retention
Prejudice / Harmless error	Admission of phone-derived interview statements did not affect verdict given strong independent evidence (victim testimony, physical evidence)	Statements were inculpatory and prejudicial; their admission was not harmless	Error in denying suppression was harmless: challenged statements were cumulative of other admitted, nonderivative evidence and unlikely to have affected jury verdict

Key Cases Cited

State v. Fondren, 285 Or 361 (1979) (police may not create or prolong exigent circumstances by inaction)
State v. McCarthy, 369 Or 129 (2021) (exigency exception limits and duration; warrantless searches/seizures require justification)
State v. Watson, 353 Or 768 (2013) (temporary seizures must be reasonably necessary to investigation)
State v. Johnson, 335 Or 511 (2003) (minimal nexus/taint framework where a warranted search follows an earlier illegality)
State v. DeJong, 368 Or 640 (2021) (burden-shifting framework for evidence obtained after a prior illegality)
Riley v. California, 573 U.S. 373 (2014) (cellphones hold extensive personal data; special considerations for searches/seizures)
United States v. Burgard, 675 F.3d 1029 (7th Cir. 2012) (retention of phone for multiple days was reasonable where officer diligently pursued warrant)
State v. Unger, 356 Or 59 (2014) (prosecution bears burden to justify warrantless searches/seizures)