State v. Thompson

273

Argued and submitted March 10, decision of Court of Appeals and judgment of

circuit court affirmed October 13, 2022

STATE OF OREGON,

Respondent on Review,

v.

DARIUS LESHAWN THOMPSON,

aka Darius Lawshawn Thompson,

Petitioner on Review.

(CC 14CR29087) (CA A160396) (SC S068639)

518 P3d 923

Petitioner moved to suppress evidence derived from the retention of his cell

phone, which was held for five days without a warrant. The trial court denied the

motion, a jury convicted defendant of first-degree robbery and other crimes, and

the Court of Appeals affirmed. Held: (1) The warrantless retention of defendant’s

phone for five days was unreasonable in the circumstances of this case and vio-

lated Article I, section 9, of the Oregon Constitution; (2) defendant adequately

raised and preserved his objection to certain pieces of evidence in the trial court

and the Court of Appeals; and (3) the admission of the evidence that should have

been suppressed did not prejudice defendant, so the trial court’s error in admit-

ting that evidence was harmless.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

On review from the Court of Appeals.*

Anne Fujita Munsey, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the briefs for petitioner on review. Also on the briefs was

Ernest G. Lannet, Chief Defender.

Jennifer S. Lloyd, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, and Garrett, Justices, and Baldwin, Senior Judge,

Justice pro tempore.**

______________

* On appeal from Multnomah County Circuit Court, David F. Rees, Judge.

308 Or App 729, 481 P3d 921 (2021).

** DeHoog, J., did not participate in the consideration or decision of this case.

274 State v. Thompson

BALMER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Cite as 370 Or 273 (2022) 275

BALMER, J.

In this criminal case, defendant robbed someone

with a knife, and the victim shot defendant. Defendant

sought treatment in a hospital, where police officers ques-

tioned him. An officer seized defendant’s cell phone as likely

containing evidence of the shooting and other crimes. The

officer did so without a warrant, fearing that, if he did not

seize the phone, defendant could otherwise destroy the phone

or its contents. Police kept the phone for five days before

applying for a warrant to seize and search the phone. Once

they had the warrant, police searched the phone and found

records of calls and messages related to the robbery and

shooting. They then used that information in questioning

defendant, eliciting statements that defendant argues were

incriminating. Before trial, defendant moved to suppress the

phone and all derivative evidence, and the trial court denied

the motion. A jury found defendant guilty of first-degree

robbery, among other crimes, and the Court of Appeals

affirmed the resulting conviction. State v. Thompson, 308

Or App 729, 481 P3d 921 (2021).

We allowed review, limited to the issues raised by

the motion to suppress, including preservation questions at

trial and on appeal. We first accept—and agree with—the

state’s concession that the Court of Appeals erred in hold-

ing that it did not need to consider three statements that

defendant claims should have been suppressed because he

identified them only in his reply brief in that court, and not

in his opening brief. Id. at 737. We then conclude, for the

reasons explained below, that keeping defendant’s phone

for five days without a warrant was unreasonable in the

circumstances presented here and was, therefore, unlaw-

ful. We also conclude that defendant adequately raised

and preserved his objection to the admission of evidence

derived from the phone’s unlawful seizure, and that the

trial court erred in denying defendant’s motion to suppress.

Finally, we evaluate whether the admission of evidence that

should have been suppressed prejudiced defendant, and we

conclude that it did not. We therefore affirm defendant’s

conviction.

276 State v. Thompson

I. BACKGROUND

We present the facts as found by the trial court,

because, in reviewing the denial of a motion to suppress,

we “are bound by the court’s factual findings if there is con-

stitutionally sufficient evidence to support them.” State v.

DeJong, 368 Or 640, 643, 497 P3d 710 (2021). “If findings

of historical fact are not made on all pertinent issues and

there is evidence from which such facts could be decided

more than one way, we will presume that the facts were

decided in a manner consistent with the court’s ultimate

conclusion.” State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993).

Defendant used a knife to rob another person. He

was aided by an accomplice, Beacock, also known as “Pree.”

At some point during the robbery, the victim drew a gun

and shot defendant in the leg.

Defendant went to a hospital for treatment of his

gunshot wound. When he arrived, he presented false iden-

tification. Because defendant had been shot, hospital staff

contacted the police. Officer Robertson responded, along

with other officers. Robertson recognized defendant from

prior encounters and realized that defendant had not given

his true name to the hospital. The local dispatch center had

received no other reports of persons being admitted to a hos-

pital in the area with a gunshot wound that night.

Robertson questioned defendant briefly and asked

defendant about the wound. Defendant claimed that he had

been the victim of a drive-by shooting. Robertson took defen-

dant’s cell phone, believing it would contain evidence related

to the shooting and to the possible crime of identity theft

(based on defendant’s presentation of false identification

when he was admitted to the hospital). Robertson was con-

cerned that, if he did not seize the phone, defendant would

destroy the phone or erase its data. Robertson did not have

a warrant to seize the phone. He did not search the phone at

that time.

Over the next five days, police investigated the rob-

bery and shooting, including by locating and interviewing the

victim. On the fifth day, Robertson applied for and obtained

Cite as 370 Or 273 (2022) 277

a search warrant for the phone’s contents. Robertson then

searched defendant’s phone and found, among other things,

records of calls between defendant and Pree, including five

calls on the night of the shooting, and one text message from

Pree to defendant early the following morning that said,

“Hey bro, you all right?” The police arrested defendant the

day after searching the phone.

Following defendant’s arrest, Robertson and another

officer interviewed defendant. At first, defendant repeated

his claim that he had been the victim of a drive-by shooting

and claimed that he had never spoken to Pree on the phone

and would not recognize a picture of Pree. After more ques-

tioning, however, defendant changed his story and admit-

ted to being present during the robbery. He claimed that

Pree, not defendant, had attempted to rob the victim and

that Pree, not defendant, had wielded the knife. In this ver-

sion of the story, defendant had been “a bystander” and had

“r[u]n off,” and Pree had “just wanted [defendant] there for

* * * protection.”

A few minutes later in the interview, Robertson

mentioned that the police had searched defendant’s phone.

Robertson suggested that the records of calls and texts

between defendant and Pree contradicted defendant’s ear-

lier claim that he had never talked with Pree on the phone.

After the phone was brought up, the interview continued,

and defendant and Robertson had several exchanges which

defendant now argues are prejudicial and which we discuss

below.

Defendant was indicted on multiple charges, includ-

ing attempted aggravated murder, robbery, assault, unlaw-

ful use of a weapon, and identity theft. Before trial, defen-

dant moved to suppress “the seizure of defendant’s cell

phone, as well as all derivative evidence.” Defendant argued

that Robertson did not have probable cause to seize the

phone and, furthermore, that no exigency justified keep-

ing the phone for five days. In defendant’s view, even if

the phone’s initial seizure were lawful, the state was per-

mitted to retain the phone for only the time it would have

taken to get a search warrant—six to 10 hours, according to

Robertson.

278 State v. Thompson

The state responded that both the initial seizure

and the retention of the phone for five days were lawful. It

contended that Robertson did have probable cause to believe

that the phone contained evidence relevant to both the shoot-

ing and the identity theft, and that exigencies justified the

seizure and retention because the phone or its data could be

destroyed if it were not seized and retained.

The trial court agreed with the state and denied

defendant’s motion to suppress. The court concluded that

Robertson had probable cause to seize the phone, at least as

to the crime of identity theft, and possibly as to the shooting

as well, and that the five-day retention was justified because

it was part of “an active, ongoing investigation.”

Later during the same hearing, defendant argued

a series of motions in limine seeking to exclude parts of a

video recording of defendant’s police interview, which the

state wanted to play for the jury. Among the parts of the

interview defendant sought to exclude, defendant identified

certain comments he made after Robertson had referred to

the contents of defendant’s phone, and that we describe in

detail below. Even though the court had already denied his

motion to suppress, defendant argued, “for the purposes of

appeal,” that that part of the interview was implicated in

the motion to suppress. If Robertson had not been able to

confront defendant about what was on his phone, defendant

explained, “the interview would have flowed differently,”

and specific statements in the interview following that

moment were therefore derivative of the cell phone’s seizure.

The court expressly recognized that defendant was “pre-

serving the argument with respect to [the court’s] ruling

on the phone with respect to those statements as well.” The

state did not object or disagree with the trial court’s charac-

terization that defendant was preserving the argument.

The case proceeded to trial. The jury found defen-

dant not guilty of attempted aggravated murder but con-

victed him of first- and second-degree robbery, second-

degree assault, unlawful use of a weapon, and identity theft.

Defendant appealed, assigning error to the trial

court’s denial of his motion to suppress, along with another

ruling. Among other things, defendant reiterated his argument

Cite as 370 Or 273 (2022) 279

that the seizure of the phone affected the subsequent police

interview. The state argued that any error was harmless,

and, in reply, defendant identified three statements from the

interview that he argued were prejudicial and were deriv-

ative of the unlawful seizure because they occurred after

police told defendant about the call logs that they had found

on his phone during the search.

The Court of Appeals affirmed in a split decision.

Thompson, 308 Or App at 741. The majority assumed with-

out deciding that the trial court had erred in denying defen-

dant’s motion to suppress, and it agreed with the state that

any error in admitting evidence derived from the seizure

of the phone was harmless. Id. at 735. In its harmlessness

analysis, the majority declined to consider the three state-

ments that defendant had identified in his reply brief, fur-

ther noting that its conclusion would have been the same

even if it had it considered the latter statements. Id. at

737-38.

The dissent disagreed, explaining that, in its view,

retaining defendant’s phone for five days was not justified

by an exigency, and the state should have sought a warrant

sooner than it did. Id. at 745-47 (Egan, C.J., concurring in

part and dissenting in part). The dissent also concluded that

the statements that defendant had identified in his reply

brief should have been considered as part of the harmless-

ness analysis, and it disagreed with the majority’s determi-

nation that the error was harmless. Id. at 743-45.

As noted, we allowed review of the various ques-

tions related to the motion to suppress.

II. ANALYSIS

As a preliminary matter, we address the Court of

Appeals’ holding that, because defendant identified certain

statements that he claims should have been suppressed

only in his reply brief in that court—and not in his opening

brief—it did not need to consider those statements in decid-

ing whether any trial court error was prejudicial. Id. at 737.

On review, the state concedes that that holding

was error. The state agrees that, if defendant preserved his

280 State v. Thompson

claim as to the suppression of the entirety of the interview

after Robertson confronted defendant with information

derived from his phone—a separate issue that we discuss

below—then “nothing prevented him from filing a reply that

identified specific statements that constituted prejudice.”

We agree that ORAP 5.45 permits an appellant to use a

reply brief to clarify arguments from their opening brief,

particularly in response to specific arguments made in the

answering brief.

We turn to the other issues related to the motion

to suppress. “We review a trial court’s denial of a motion to

suppress for errors of law * * *.” DeJong, 368 Or at 643.

This case presents four related questions: (1) whether

the police violated Article I, section 9, of the Oregon

Constitution by seizing and retaining defendant’s phone

without a warrant, (2) whether the evidence that defendant

sought to suppress derived from that seizure, (3) whether

defendant adequately preserved his suppression argument

with regard to certain statements that he made during the

police interview, and (4) whether any error by the trial court

was harmless. For the reasons explained below, we conclude

that the five-day retention of defendant’s phone was unlaw-

ful, that part of defendant’s police interview derived from

that unlawful seizure, and that defendant adequately pre-

served his claim of error as to his statements in the police

interview after the officers had informed defendant of the

call logs and texts found in the search of his phone. We fur-

ther conclude, however, that the trial court’s error in deny-

ing the motion to suppress was harmless.

A. Whether the Retention of Defendant’s Cell Phone Was an

Unlawful Seizure

Article I, section 9, of the Oregon Constitution protects

individuals against unreasonable searches and seizures:

“No law shall violate the right of the people to be secure

in their persons, houses, papers, and effects, against unrea-

sonable search, or seizure; and no warrant shall issue but

upon probable cause, supported by oath, or affirmation,

and particularly describing the place to be searched, and

the person or thing to be seized.”

Cite as 370 Or 273 (2022) 281

As relevant here, that provision protects the rights of indi-

viduals to be free from “unreasonable search, or seizure.”

Searches are distinct from seizures, although they some-

times occur together. “A search occurs when the government

invades an individual’s privacy interest, whereas a seizure

occurs when there is a significant interference, even a tem-

porary one, with a person’s possessory or ownership inter-

ests in the property.” State v. Barnthouse, 360 Or 403, 413,

380 P3d 952 (2016) (citation and internal quotation marks

omitted). Keeping property in police custody is a form of con-

tinuing seizure. State v. Owens, 302 Or 196, 207, 729 P2d

524 (1986) (“The seizure of an article by the police and the

retention of it (even temporarily) is a significant intrusion

into a person’s possessory interest in that ‘effect.’ ”).

As this court has explained, “[u]nder Article I, sec-

tion 9, searches and seizures must be conducted pursuant

to a warrant or one of the few specifically established and

limited exceptions to the warrant requirement. Searches

and seizures are distinct events requiring separate justi-

fications.” State v. McCarthy, 369 Or 129, 131, 501 P3d 478

(2021). Each search or seizure by the state, including con-

tinuing seizures, must be reasonable, as demonstrated by

an accompanying warrant or by coming within an excep-

tion to the warrant requirement. If police search or seize

something without a warrant, the state has the burden to

prove that that search or seizure was valid under an excep-

tion to the warrant requirement. State v. Unger, 356 Or

59, 75, 333 P3d 1009 (2014); ORS 133.693(4) (“Where the

motion to suppress challenges evidence seized as the result

of a warrantless search, the burden of proving by a prepon-

derance of the evidence the validity of the search is on the

prosecution.”).

In this case, the relevant exception to the warrant

requirement is the “exigent circumstances,” or “exigency,”

exception. “Under that exception, police may conduct a war-

rantless seizure or search if they have probable cause and

exigent circumstances exist. Exigent circumstances are cir-

cumstances where prompt responsive action by police offi-

cers is demanded.” McCarthy, 369 Or at 142 (citation and

internal quotation marks omitted).

282 State v. Thompson

Exceptions to the warrant requirement, such as the

exigency exception, are limited in various ways, including in

terms of scope and duration. “The scope of a warrant excep-

tion,” for instance, “is limited by the purposes for that excep-

tion.” Id. at 141-42; see also State v. Stevens, 311 Or 119,

130-31, 806 P2d 92 (1991) (a report of missing children justi-

fied a brief, targeted investigation of the house where police

had probable cause to believe the children were located).

Likewise, an exception “may not be used in ways that reach

beyond the purposes of the particular exception.” State v.

Fulmer, 366 Or 224, 233, 460 P3d 486 (2020); see also State

v. Miller, 300 Or 203, 229-30, 709 P2d 225 (1985) (explaining

that an exigency that permitted entry into a room might not

justify a search into closed cupboards or drawers).

The duration of a warrant exception also may be

limited. This court has held that the exigency exception,

for example, lasts only while the corresponding exigent cir-

cumstances last. See McCarthy, 369 Or at 178 (an exigency

may justify initial seizure, but “the seizure itself may elim-

inate any exigency that would justify proceeding further

without a warrant,” such as, in that case, searching a car);

State v. Davis, 295 Or 227, 239-40, 666 P2d 802 (1983) (exi-

gent circumstance of someone being held inside a room by

an armed person did not justify warrantless entry into the

room after the person being held walked out the door); State

v. Quinn, 290 Or 383, 392, 623 P2d 630 (1981), overruled

on other grounds by State v. Hall, 339 Or 7, 115 P3d 908

(2005) (a deferred warrantless search of a vehicle “must be

commenced as promptly after the seizure as is reasonable

in the circumstances”). Additionally, the police may not cre-

ate or prolong exigent circumstances by their own inaction

or for their own convenience. State v. Fondren, 285 Or 361,

366-67, 591 P2d 1374, cert den, 444 US 834 (1979), overruled

on other grounds by State v. Brown, 301 Or 268, 721 P2d

1357 (1986) (exigent circumstances did not exist when offi-

cer waited four hours after establishing probable cause to

seize a parked automobile because an “officer cannot create

exigent circumstances by his own inaction”); Quinn, 290 Or

at 392 (a search that was delayed “for the convenience of the

police and the owner of the stolen property” was not justified

by the exigency exception).

Cite as 370 Or 273 (2022) 283

In this case, Officer Robertson took defendant’s

phone and held it for five days before seeking and obtaining

a warrant. Both taking and keeping the phone were war-

rantless seizures that each must have been both supported

by probable cause and subject to a warrant exception. As to

probable cause, Robertson testified that he thought that he

had probable cause to believe that defendant’s phone would

have evidence of defendant’s identity and evidence related to

defendant’s shooting. As to exigency, Robertson testified to

his belief that, if he left the phone with defendant, defendant

might destroy the phone or erase its data before Robertson

could get a warrant and search the phone. In the officer’s

view, the potential destruction of evidence was an exigency

that justified seizing (but not searching) the phone and hold-

ing it until a search warrant application could be processed.

We assume without deciding that Robertson’s initial seizure

of the phone was supported by probable cause and justified

by an exigency, and we focus instead on whether retaining

the phone for five days before applying for a warrant was

justified by an exigent circumstance.

In the state’s view, the exigency exception applies in

this case because, if the phone had been left with or returned

to defendant, defendant could have destroyed the phone or

altered its contents. As the state argues, exigent circum-

stances may include “situations where the delay caused

by obtaining a warrant would likely lead to the loss of evi-

dence.” McCarthy, 369 Or at 142. But even in such a cir-

cumstance, police officers are not permitted to prolong the

circumstance through their own decision not to seek a war-

rant. See Fondren, 285 Or at 366-67; Quinn, 290 Or at 392.

By continuing to hold the phone without seeking a warrant

to retain the phone and to search it, the police impermissi-

bly prolonged the very circumstance that the state argues

allowed them to retain the phone. Robertson testified that

he could have applied for (and potentially received) a war-

rant in six to 10 hours after seizing the phone. Instead, he

waited five days. By that time, the purported exigency was

attributable only to Robertson’s delay in seeking a war-

rant, and it no longer justified the continuing seizure. The

state has not identified any exigency or other exception to

the warrant requirement that might justify Robertson’s

284 State v. Thompson

retention of the phone for five days without seeking a

warrant.

Fondren offers a helpful comparison and supports

our conclusion that the delay here was unlawful. The officer

in that case obtained information that constituted probable

cause to believe that marijuana was in a car owned by the

defendant. 285 Or at 365. The officer received that infor-

mation between 6:30 and 7:30 p.m., and he found the car at

defendant’s place of work in less than 45 minutes. The offi-

cer chose not to seek a warrant, although he testified that a

warrant could have been applied for and obtained within an

hour and a half to four hours. Id. at 366. At 11:30 p.m., four

to five hours after the officer had probable cause, the offi-

cer had the defendant called out from his workplace to the

car. The defendant refused to consent to a search of his car,

and the officer had the car towed. In other words, the officer

seized the car to prevent the loss of any evidence inside. The

officer obtained a search warrant the next day, searched the

car, found marijuana, and seized it. The defendant moved to

suppress the marijuana, arguing that the seizure of the car

was unlawful. Id. at 363.

As relevant here, the question in Fondren was

whether seizing defendant’s car was justified by exigent

circumstances because the contraband was likely to dis-

appear if the officer did not seize the car before seeking a

warrant. This court observed that the officer had enough

information to apply for a warrant more than four hours (the

maximum time it would have taken to get a warrant) before

the defendant was due to return to his car. The officer did

not cite any other exigency justifying a delay in getting a

warrant. As this court explained, “That the officer waited

until 10:00 p.m. or thereafter to attempt to obtain a war-

rant and then decided there was insufficient time does not

create exigent circumstances. * * * The officer cannot create

exigent circumstances by his own inaction.” Id. at 366-67.

This court concluded that the purported exigency did not

justify the seizure and that the motion to suppress should

have been granted.

Although the law applicable to the seizure of vehi-

cles has changed since Fondren was decided, see Brown, 301

Cite as 370 Or 273 (2022) 285

Or at 277, overruled by McCarthy, 369 Or at 177, Fondren

still stands for the principle that police may not create—or

extend—the circumstances that justify a temporary, war-

rantless search or seizure. In Fondren, as in this case, the

relevant inaction was the decision not to apply for a warrant

despite having the necessary information. In both cases, the

exigency could have been avoided or made immaterial by

applying for and potentially receiving a warrant. Although

Fondren is not on all fours with this case, the state makes no

attempt to distinguish Fondren, and, reasoning by analogy,

we conclude here that the circumstances that justified the

initial seizure of defendant’s cellphone did not justify police

in keeping it for five days. As we said in State v. Watson, 353

Or 768, 781, 305 P3d 94 (2013), regarding the seizure of a

person, “both Oregon statutes and this court’s Article I, sec-

tion 9, case law require that law enforcement officers have

a justification” for a temporary seizure as part of an inves-

tigation, and that “officer[s’] activities be reasonably related

to that investigation and reasonably necessary to effectuate

it.” If the officers’ activities “exceed those limits, then there

must be an independent constitutional justification for those

activities.” Id.

The state also argues that, once police have lawfully

seized evidence of an alleged crime, they may then hold that

evidence indefinitely for use at trial, without a warrant. The

state relies on cases in which, the state argues, this court

implied that containers of illicit substances, once lawfully

searched, may be held for use at trial: State v. Heckathorne,

347 Or 474, 223 P3d 1034 (2009); Owens, 302 Or 196; and

State v. Herbert, 302 Or 237, 729 P2d 547 (1986).

The state’s reliance on those cases is misplaced. In

those cases, the evidence at issue was allegedly unlawful or

controlled substances and their containers. See Heckathorne,

347 Or at 477 (anhydrous ammonia, a precursor substance

used in methamphetamine production); Owens, 302 Or at

198 (unspecified controlled substances); Herbert, 302 Or at

239 (cocaine). Additionally, those cases focused on the legal-

ity of initial searches and seizures, not the state’s ability to

retain seized evidence for use at trial. Even so, to the extent

that those cases did permit the police to hold property

286 State v. Thompson

without a warrant, they did so in part because the property

at issue was contraband, and its possession by the defen-

dants was illegal.

In this case, however, the evidence at issue was

defendant’s own phone—not stolen property or contra-

band—and it was, of course, lawful for defendant to possess

the phone. Although the defendants in Heckathorne, Owens,

and Herbert would not have been able to have their seized

contraband returned to their possession, see ORS 133.643(3)

(requiring that someone seeking the return of seized things

must be lawfully entitled to possess those things), here,

police could have returned defendant’s phone. Heckathorne,

Owens, and Herbert are distinguishable from this case and

do not stand for the proposition that any property, once in

police custody, may be retained indefinitely as evidence in

the absence of a warrant.

The state raises the additional counterargument

that, under Fourth Amendment case law, the five-day

retention of defendant’s phone was “reasonable” because,

as Robertson testified, “[a] lot happened during that [five-

day] period of time.” The state essentially contends that the

retention was permissible because police were diligently

pursuing their investigation of the shooting and developing

probable cause to search and seize other evidence in vari-

ous locations, as well as the phone. The state emphasizes

that “[t]he five-day delay before obtaining a warrant was not

due to neglect, but, rather, as the trial court found, resulted

from investigators’ other obligations during an ‘active, ongo-

ing investigation.’ ”

That argument fails for two reasons. First, it is

based on the state’s premise that Fourth Amendment case

law allows police to retain seized property for a “reasonable”

time. Our conclusion above as to the validity of the seizure

here flows, however, from Article I, section 9, of the state con-

stitution, which, as we have consistently held, may be more

restrictive of police activity than the federal constitution.

State v. Caraher, 293 Or 741, 750-51, 653 P2d 942 (1982). And

our cases do not countenance an open-ended reasonableness

inquiry that balances law enforcement’s investigative needs

against an individual’s property interests. Rather, our cases

Cite as 370 Or 273 (2022) 287

make clear that police may justify temporary warrantless

seizures only to the extent that those seizures are “reason-

ably necessary to effectuate” an investigation, and police

activities that “exceed those limits [require] an independent

constitutional justification.” Watson, 353 Or at 781.

Second, even if we look to federal case law for guid-

ance, an ongoing investigation, however diligently pursued,

does not automatically toll the constitutional requirement

that the seizure and retention of property be reasonable—

especially the seizure and retention of property like phones,

which, for many, are integral to everyday life and contain

a wealth of personal information. See Riley v. California,

573 US 373, 396-97, 134 S Ct 2473, 189 L Ed 2d 430 (2014)

(suggesting that phones now often contain more information

than houses do). The state cites United States v. Burgard, 675

F3d 1029, 1035 (7th Cir), cert den, 568 US 852 (2012), which

summarizes the principle well: “After seizing an item with-

out a warrant, an officer must make it a priority to secure a

search warrant that complies with the Fourth Amendment.

This will entail diligent work to present a warrant applica-

tion to the judicial officer at the earliest reasonable time.”

In Burgard, the Seventh Circuit found that retain-

ing a seized phone for six days without a warrant was

reasonable, and the state urges us to come to the same

conclusion here. But the circumstances in Burgard were dif-

ferent. In Burgard, the court detailed how the seizing offi-

cer worked toward getting a warrant during those six days.

Id. at 1031. The process for getting a warrant in that case

involved working with another officer, who was assigned to

work part time with the FBI, and then collaborating with

a federal prosecutor. The only delays attributed to events

outside the warrant application process were delays due to

an armed robbery in a nearby town, which the officer apply-

ing for the warrant had to respond to, and an intervening

Saturday, during which the officer may have continued to

work on the robbery or “may have taken that day off.” Id.

Thus, although some delay was attributable to intervening

causes, the bulk of the delay was due to the complex warrant

application process, and the intervening causes included an

emergency that required immediate attention.

288 State v. Thompson

Here, by contrast, Robertson testified that he was

working on other, not phone-related aspects of the investiga-

tion of this case for the bulk of the five days after he seized

defendant’s phone. Robertson did not testify that he, like

the officer in Burgard, faced delays in attempting to acquire

the warrant due to intervening emergencies, inefficiencies

in the warrant process, or the need to coordinate the appli-

cation with other law enforcement agencies. And although

part of Robertson’s investigation may have involved pre-

paring other materials in support of the warrant that was

ultimately issued—which included physical evidence and

locations, in addition to defendant’s phone—Robertson did

not testify that those efforts were necessary to get a war-

rant to seize and search the phone. And even if the five-day

delay here were due to inefficiencies in the warrant process,

that alone would not necessarily excuse police from limit-

ing their retention of seized property to a reasonable time

as required by the Oregon Constitution. See McCarthy, 369

Or at 177 (“[L]aw enforcement agencies and courts cannot

create exigent circumstances by failing to take reasonable

steps to develop warrant processes that protect against

the invasion of the rights of a citizen that results from an

unnecessarily cumbersome warrant process.” (Citation and

internal quotation marks omitted.)). Thus, even if we were

to apply the federal “reasonableness” standard proposed by

the state, the five-day delay in seeking a warrant would not

have met that standard.

In sum, we conclude that, under the facts of this

case, retaining the phone for five days, when the police could

have obtained a warrant in less than one, was not “reason-

ably necessary” to the investigation, Watson, 353 Or at 781,

and violated Article I, section 9. To be clear, we do not hold

that there is a specific time limit within which police must

obtain a warrant in every case, or that there was such a pre-

cise deadline in this case. Cf. Illinois v. McArthur, 531 US 326,

331, 121 S Ct 946, 148 L Ed 2d 838 (2001) (declining to adopt

a bright-line rule that a warrantless seizure is unreasonable

under the Fourth Amendment). Rather, the continued seizure

was justified only for the time that was reasonably necessary

to obtain a warrant, and we conclude that the five-day delay

was not reasonable under the circumstances here.

Cite as 370 Or 273 (2022) 289

B. Whether the Evidence at Issue Derived from the Seizure

Evidence that is obtained as the result of an uncon-

stitutional act is generally suppressed. State v. Arreola-

Botello, 365 Or 695, 714, 451 P3d 939 (2019). If the state

gains information through an unlawful search or seizure

in violation of Article I, section 9, the state may not take

advantage of that information, which would be “an advan-

tage that [it] would not have had had the police stayed within

the bounds of the law.” Unger, 356 Or at 74.

In this case, defendant sought to suppress “the sei-

zure of defendant’s cell phone, as well as all derivative evi-

dence.” Defendant acknowledges that his phone was searched

pursuant to a warrant but contends that that search was

tainted by the preceding, unlawful seizure. He asserts that

his motion to suppress covered the phone itself, information

and data obtained from the search of the phone, and other

evidence derivative of the unlawfully obtained information.

For analytical purposes, we distinguish between (1) evi-

dence taken directly from the search of defendant’s phone—

such as information as to defendant’s identity and text mes-

sages between defendant and Pree—as to which police had

obtained a warrant, and (2) defendant’s statements during

his police interview made after Robertson referred to cer-

tain information found on the phone.

This court recently explained how we approach evi-

dence obtained when unlawful police conduct leads to a war-

ranted search:

“[T]his court [has] adopted a burden-shifting framework

that applies when a defendant challenges the admission of

evidence obtained in a warranted search that is preceded

by an illegality. Under that framework, the defendant has

the initial burden to establish a minimal factual nexus

between the illegality and the challenged evidence. If the

defendant does so, the burden shifts to the state to estab-

lish that the challenged evidence was untainted by the

illegality.”

DeJong, 368 Or at 642 (citation omitted). We apply that

framework in this case and evaluate whether defendant

established a minimal factual nexus between the unlawful

seizure and the challenged evidence.

290 State v. Thompson

As for the first category of evidence, information

found within the phone itself, defendant argues that he

established the minimal factual nexus by pointing out that,

in Robertson’s search warrant application, Robertson identi-

fied the phone by brand, color, and number, and described it

as “currently being held in the Gresham Police [Department]

Evidence division.” That the phone was being held by the

police, of course, was true only because the phone had been

seized and retained despite the dissipation of the exigency

that justified the initial seizure and for what we have just

determined was an unreasonably long period of time. The

state makes no argument that defendant did not establish a

minimal factual nexus between the unlawful seizure of the

phone and the evidence that it obtained from the phone.

This aspect of the case bears some resemblance

to State v. Johnson, 335 Or 511, 73 P3d 282 (2003). In that

case, the police unlawfully seized defendant’s clothes as

evidence, and the trial court granted defendant’s motion to

suppress the use of the clothes at trial. Id. at 515. The police

then applied for a warrant authorizing a new seizure of the

clothes, which were still being held by the police. In its war-

rant application, the state “used information derived from

that earlier unlawful seizure, viz., the fact that the clothes

could be found in a police evidence locker.” Id. at 521. This

court held, relying on that fact, that the defendant “did meet

his burden of showing a factual nexus between the evidence

at issue and the prior unlawful conduct, and that he suc-

ceeded in shifting the burden of persuasion on the issue of

taint to the state.” Id.

Similarly, in this case, Robertson used the fact that

defendant’s phone could be found in the Gresham Police

Department Evidence Division in his search warrant appli-

cation. Accordingly, defendant established a minimal fac-

tual nexus between the unlawful seizure and the evidence

learned from the phone. The state does not attempt to dis-

tinguish this case from Johnson. As we noted previously,

however, the phone was not introduced as evidence, and

defendant did not object to any testimony or evidence at

trial as being derivative of the unlawful seizure other than

the interview statements, to which we now turn.

Cite as 370 Or 273 (2022) 291

As to the interview statements, defendant argues

that there is a factual nexus because, partway through the

interview, Robertson described to defendant certain infor-

mation obtained from the phone, specifically “call logs” and

texts between defendant and Pree. Defendant argues that

statements he made after being presented with that unlaw-

fully obtained information were derivative of the unlawful

retention of the phone. Defendant asserts that Robertson

used that information to “put pressure on defendant to

change his story.”

The record of defendant’s interview provides some

support for that assertion. For example, among other asser-

tions, defendant first denied talking to Pree on the phone.

Later, the officer described data on defendant’s phone,

including records of phone calls between defendant and

Pree, and challenged one of defendant’s previous asser-

tions: “You told me that you’ve never talked to [Pree] on the

phone or anything like that before, so I wonder why he has

your number in the first place.” Defendant argues that cer-

tain statements he made after Robertson showed him the

phone logs were tainted by police use of information from

the unlawfully seized phone, thus demonstrating the kind of

nexus required by our cases. The state makes no argument

that there is not a factual nexus between the information on

the phone that Robertson referred to during the interview

and defendant’s subsequent statements, and we conclude

that defendant met his initial burden.

Because defendant met that burden, the burden

shifted to the state to “establish that the challenged evi-

dence was untainted by the illegality.” DeJong, 368 Or at

642. The state could do so, for example, “either by demon-

strating the evidence would have been inevitably discov-

ered, was discovered through independent means, or was so

attenuated from the illegality as to dissipate the taint of the

unlawful conduct.” Johnson, 335 Or at 520.

As to the call logs and other evidence gained

directly from the phone, the state argues that that evidence

was obtained from an independent source—specifically,

Pree’s phone, which the police also had seized, and which

contained records of the same calls and texts between the

292 State v. Thompson

phones. The state argues that, because of that independent

source, defendant would have to establish another basis

for suppressing his interview statements than his asser-

tion that they were derivative of the unlawful seizure of

the phone. We observe that, although the state presented

evidence suggesting that it eventually learned of the call

records from independent sources, that evidence does not

show that the state learned of those call records prior to

defendant’s police interview. As a result, even accepting the

viability of the state’s independent source argument, that

argument would not resolve whether defendant’s interview

statements derived from the unlawful seizure of his phone.

The state makes no counterargument to that position, other

than the procedural arguments discussed below. Because

we reject those arguments for the reasons explained below,

we conclude, based on the framework articulated in DeJong,

that at least the three interview statements that defendant

challenges should have been suppressed.

C. Whether Defendant Preserved His Derivative-Evidence

Argument

The state argues that defendant failed to preserve

his argument that certain statements from his interview

should have been suppressed as derivative of the phone’s sei-

zure. The state acknowledges that defendant moved to sup-

press the seizure of his phone and “all derivative evidence,”

but it argues that defendant did not adequately convey to the

trial court or the state that that derivative evidence included

some of defendant’s interview statements. The state recog-

nizes that defendant identified those interview statements

later in the hearing after the motion to suppress was denied,

but it contends that that discussion was too little, too late,

and was not an adequate substitute for identifying the spe-

cific interview statements defendant sought to suppress in

his written motion or initial argument.

First, we note that the state has provided no author-

ity to support its specific position that defendant’s written

motion to suppress “the seizure of defendant’s cell phone,

as well as all derivative evidence” inadequately identified

the evidence that defendant sought to suppress. Assuming,

without deciding, that the state is correct on that point, we

Cite as 370 Or 273 (2022) 293

nevertheless conclude that defendant adequately preserved

his claim as to the interview statements.

As we have often reiterated, “the preservation rule

is a practical one, and close calls * * * inevitably will turn

on whether, given the particular record of a case, the court

concludes that the policies underlying the rule have been

sufficiently served.” State v. Parkins, 346 Or 333, 341, 211

P3d 262 (2009). Three of the policies underlying preserva-

tion guide the outcome in this case.

One is that preservation “gives a trial court the

chance to consider and rule on a contention, thereby possibly

avoiding an error altogether or correcting one already made,

which in turn may obviate the need for an appeal.” Peeples

v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). In this

case, the trial court had a chance to rule (and did rule) on

the motion to suppress, as well as to respond to defendant’s

argument made during the motions in limine that portions

of the interview were included in that motion.

The second policy is that preservation “ensures fair-

ness to opposing parties, by requiring that the positions of the

parties are presented clearly to the initial tribunal so that

parties are not taken by surprise, misled, or denied oppor-

tunities to meet an argument.” State v. Walker, 350 Or 540,

548, 258 P3d 1228 (2011) (internal quotation marks omitted).

Here, the state was not taken by surprise, misled, or denied

an opportunity to meet that argument, because, when defen-

dant stated that he was preserving his suppression claim as

to the interview, the state had a chance to object, or preserve

an argument in response, and did not do so.

The third policy is that “preservation fosters full

development of the record, which aids the trial court in

making a decision and the appellate court in reviewing it.”

Peeples, 345 Or at 219-20. Here, the state has not identi-

fied any additional evidence it would have introduced or any

other way the record would have been more fully developed

had defendant specifically referred to the interview state-

ments in his written motion to suppress.

Additionally, we have observed that, “[p]articularly in

criminal cases, in which there is a premium on considerations

294 State v. Thompson

of cost and speed, the realities of trial practice may be such

that fairly abbreviated short-hand references suffice to

put all on notice about the nature of a party’s arguments.”

Walker, 350 Or at 550. In the circumstances of this case, the

short-hand reference to “all derivative evidence” sufficed,

and, if the state believed that defendant’s motion to suppress

was inadequately specific, it could have challenged it on that

ground when the court was hearing that motion.

Taken together, the above considerations underly-

ing preservation indicate that defendant adequately pre-

served his argument regarding the interview statements.

We therefore reject the state’s contention that defendant’s

motion to suppress as to the interview statements was

unpreserved.

D. Whether the Trial Court’s Denial of Defendant’s Motion

to Suppress Was Harmless Error

“Although an error occurred in the trial court, we

will affirm if there is little likelihood that the particular

error affected the verdict.” State v. McKinney/Shiffer, 369

Or 325, 334, 505 P3d 946 (2022) (internal quotation marks

omitted); see also Or Const, Art VII (Amended), § 3. In deter-

mining whether the error affected the verdict, “we do not

determine, as a factfinder, whether the defendant is guilty.”

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Rather,

the question is “whether, after we review the record, we can

say that there was little likelihood that the [admission of the

derivative evidence] affected the jury’s verdict.” Id.

Defendant argues that the trial court’s denial of

his motion to suppress was not harmless because certain

statements made during his second police interview were

inculpatory and prejudicial. Defendant identifies three

exchanges from that interview that he contends were not

harmless, which we discuss below.

In response, the state contends that the trial court’s

error was harmless. The state first argues that “the con-

tent of any admissions that defendant made after police

mentioned the call records were not qualitatively different

from the incriminating aspects of his statements before that

point.” See State v. Bement, 363 Or 760, 779, 429 P3d 715

Cite as 370 Or 273 (2022) 295

(2018) (“But even when evidence relates to a central factual

issue, its exclusion may be harmless if it is ‘merely cumu-

lative of,’ instead of ‘qualitatively different than,’ evidence

presented to the factfinder.” (Quoting Davis, 336 Or at 34.)).

The state points to significant direct testimony, including

lengthy and detailed testimony from the victim that defen-

dant, not Pree, had wielded the knife and cut the victim on

the neck and (when the victim tried to push the knife away)

on the hand. The victim also testified that defendant, but

not Pree, had fled after the robbery. Additionally, the state

argues that substantial, uncontroverted physical evidence

supported the jury’s findings. Police found the victim’s wal-

let and identification and a knife with the victim’s blood at

the apartment where defendant was staying. The victim’s

testimony corroborated the state’s theory of the case and

was consistent with the physical evidence.

In evaluating whether the error was harmless, we

consider both the nature and the context of the error. Davis,

336 Or at 32-33. Here, the nature of the error is that the

trial court refused to suppress the interview statements dis-

cussed above. It was undisputed that a robbery had occurred

and that someone had attacked the victim with a knife. The

only issue was whether that person was defendant, as the

state argued, or Pree, as defendant contended. The state

offered the interview to support its theory that defendant

was lying about Pree using the knife to rob the victim when,

the state contended, defendant had not only participated in

the robbery but had been the one to use the knife.

As for context, the three exchanges now at issue were

part of a much longer interview that lasted around an hour

and occurred about a week after the police had interviewed

defendant at the hospital. Both of those interviews provide

helpful context for the exchanges emphasized by defendant.

The statements that defendant made to police during those

two interviews were presented to the jury through record-

ings, which were admitted through Robertson’s testimony.1

(Defendant did not testify at trial.)

1

The interview at the hospital was an audio recording. The second interview

was videotaped, and the full interview of about one hour was edited jointly by

counsel for the state and defendant to exclude inadmissible or irrelevant mate-

rial. The edited video of about 24 minutes was played for the jury.

296 State v. Thompson

The first recording demonstrated that, while at the

hospital, defendant initially identified himself as Marcus Tyler

and gave police an identification card to that effect. Shortly

thereafter, Robertson—who, as noted, knew defendant from

earlier encounters—challenged defendant’s statement, say-

ing, “So this is the deal, stud, you’re not Marcus Tyler. You

are Darius Thompson? Is that your real name?” Defendant

immediately acquiesced, admitted that he was Thompson,

and confirmed that he had used identification that was not

his. Defendant said that the identification was his cousin’s

and that he used it because he didn’t like hospitals. Defendant

then went on to tell Robertson that he had been the victim

of a drive-by shooting. Defendant’s narrative included numer-

ous details, including where he was walking from (a Shari’s

restaurant) and to (home) and the types of the cars that were

purportedly involved (a black Buick and a gray Impala). When

asked whether he had wanted to identify or retaliate against

the person who he said had shot him, defendant said, “I don’t

know about that.” As Robertson later explained during the

hearing on defendant’s motion to suppress, defendant was

not “forthcoming with information” at the hospital. Instead,

defendant was “evasive at times” and gave Robertson “facts

that later [Robertson was] unable to verify.”

A week later, during defendant’s custodial inter-

view at the police station, defendant first repeated the

drive-by narrative, as captured in the video played at trial.

Defendant claimed that he had been shot by the man who

was later identified as the victim of the robbery. Robertson

asked how defendant knew who had shot him during the

drive-by. Defendant indicated the victim had been bragging

around their shared apartment complex about shooting

someone, and that a friend of defendant’s had brought him

the victim’s identification card. When first asked about Pree,

defendant denied knowing Pree well or that he would be

able to identify Pree in a photograph. Defendant indicated

that he had never spoken with Pree on the phone, and said,

“I really don’t associate with him.” When asked about the

identification that he had presented at the hospital, which

defendant had said was his cousin’s, defendant now stated

that the identification was not from any of his relatives, and

that defendant had found the identification.

Cite as 370 Or 273 (2022) 297

After defendant had explained his narrative,

Robertson challenged defendant, saying, “I know that what

you’re telling me isn’t what happened at all. Okay? I know

that something else happened that night * * *.” Defendant

immediately changed his story again, admitting that there

was a robbery—only that Pree, not defendant, attempted

the robbery, and that defendant had run away when the rob-

bery began. He then admitted to knowing Pree and to being

present at the robbery, although, just a few minutes earlier,

he said that he had never spoken to Pree on the phone and

would not recognize him. When asked about the knife, defen-

dant stated that the knife used in the robbery would not be

found in the apartment where he was staying (although it

later was). He also stated that he was “not sure” what kind

of knife it was, and, when asked whether Pree still had the

knife (because he had asserted that Pree was the one who

used the knife), he said, “I don’t know,” even though, as the

police later discovered and the evidence at trial showed, the

knife was found in the apartment where defendant stayed.

Defendant also, despite his earlier statements claiming he

did not know them, identified both Pree and the victim from

photographs that were shown to him by police.

All the above discussion occurred before Robertson

brought up defendant’s call records and text messages, and

that discussion was not subject to the motion to suppress.

Defendant’s statements made before Robertson raised the

call records and text messages include multiple indications

that defendant was not being truthful—about his identity at

the hospital, about the cause of the shooting being a robbery,

and about details surrounding the robbery such as knowing

Pree and being able to identify the victim. Defendant’s dis-

cussion also included evasive responses to questions posed

by Robertson and the other interviewing officer, such as by

defaulting to saying “I don’t know” in response to various

questions (for example, about the type and location of the

knife used in the robbery), or not responding audibly at all.

At trial, defendant’s dishonesty was undisputed. As defense

counsel himself argued in closing, “Mr. Thompson lied, no

question about that. He lied saying he was Marcus Tyler

originally. He lied at other times. He minimized what he

did.”

298 State v. Thompson

With that context, we now turn to the three deriv-

ative exchanges that defendant contends were prejudicial.

The three exchanges occurred after Robertson raised the

call logs and texts that had been found on defendant’s cell

phone. The challenged statements appear on different pages

of the transcript and other, unchallenged questions and

responses appear between the three challenged statements.

We address the statements individually.

The first exchange challenged by defendant con-

cerned whether Pree used a knife or not during the robbery:

“OFFICER ROBERTSON: But before you told me that

[Pree] had a knife and he held it to [the victim’s] neck, and

now you’re saying that you don’t know what he had.

“[DEFENDANT]: No, I said that (inaudible) I didn’t

know if he had it on him or not.”

Defendant contends that a jury could infer from that

exchange that defendant was lying about having the knife,

or at least that he was unwilling to positively assert that

Pree had the knife.

Such an inference is permissible; however, the evi-

dence is cumulative. Unchallenged portions of the two

recordings had already made clear defendant was not

being entirely truthful or forthright about the knife. The

challenged statement also echoed an earlier, unchallenged

statement about whether Pree still had the knife (“I don’t

know.”). And despite defendant’s hedging in the challenged

exchange, defendant still maintained, after the phone was

brought up, that he had not wielded the knife. For exam-

ple, Robertson asked shortly afterward, “Nobody else there

had a knife?” Defendant responded, “I didn’t.” A bit later,

Robertson stated, “Yeah, you guys brought a knife to a gun

fight.” Defendant countered, “Not me.” Throughout defen-

dant’s discussions with the police, defendant consistently

offered an ambiguous and shifting narrative of the shooting

and, eventually, of the robbery. The challenged statement

is not qualitatively different from the unchallenged state-

ments that defendant made.

Defendant also points to an exchange about whether

defendant was trying to kill the victim:

Cite as 370 Or 273 (2022) 299

“OFFICER ROBERTSON: Okay. So you’re saying you

didn’t want to kill him?

“[DEFENDANT]: I don’t know.”

Defendant contends that a jury could take that statement as

an admission of guilt.

In the context of the interview, however, a jury

would be unlikely to have understood that statement as an

admission of guilt. The statement was sandwiched between

much more direct assertions of innocence by defendant.

A few moments earlier, Robertson asked, “Will you agree

on that[,] that Pree didn’t have the knife?” Defendant

responded, “I didn’t have any weapons on me.” And a few

moments after, Robertson asked, “Nobody else there had a

knife?” Defendant responded, “I didn’t. I don’t know what

Pree had.” Having just heard those assertions, a jury would

be unlikely to take defendant’s statement, “I don’t know,”

as a direct or implicit admission of guilt to either wanting

to kill the victim or using a knife. A jury would more likely

see it as another aspect of his attempt to evade the line of

questioning about his involvement in the robbery at all or

whether he, rather than Pree, had the knife. As defendant

admits in his briefing in this court, that statement could

be viewed as an example of “merely trying to avoid the offi-

cer’s questions.” So understood, that statement is not quali-

tatively different than defendant’s earlier unchallenged and

nonderivative interview statements about “not knowing”

about various aspects of the confrontation with the victim.

Finally, defendant challenges an exchange about

whether defendant wanted to get the victim in trouble for

shooting him:

“[DEFENDANT]: I don’t want to—I don’t want

this dude [the victim] to get in trouble for shooting me

(inaudible).

“OFFICER ROBERTSON: Why would you not want

him to get in trouble for shooting you?

“[DEFENDANT]: Because he didn’t know any better,

bro. He was just shooting at somebody.”

300 State v. Thompson

Defendant contends that that exchange, like similar state-

ments by defendant, could lead the jury to “infer that defen-

dant believed that the victim was acting in self-defense,

which indicates that defendant had in fact attacked the vic-

tim with the knife.”

But it is not at all clear that one could reasonably

infer from defendant’s statements that he believed the vic-

tim was acting in self-defense and, from that, infer that it

was defendant who wielded the knife, rather than Pree. In

isolation, such an inference might be plausible, but, by that

point in the trial, the evidence had made it apparent that

the victim of the planned robbery had a gun and that those

engaged in the robbery (defendant and Pree) had a knife.

And the jury already knew, by the time the interview video

was shown, that defendant’s primary defense was not that a

robbery had not occurred or that he had not been present, but

rather that it was Pree, not defendant, who had wielded the

knife. Defendant’s statements about not wanting to get the

victim in trouble were in the context of Robertson’s further

questioning about whether defendant and Pree had brought

a knife to the robbery and used it. Shortly after defendant

made that statement, Robertson challenged defendant’s

story as noted above, saying, “Yeah, you guys brought a

knife to a gun fight.” Defendant responded, “Not me. ‘Cause

I didn’t know Pree was gonna do this.” He then said, “I

didn’t know Pree was going to—going to pull out a knife[.]”

Those statements were clear expressions by defendant that

he did not bring or use a knife. As with the above exchange

about whether defendant wanted to kill the victim, it would

be speculative to think that the jury would likely infer that

defendant was admitting in his earlier, ambiguous state-

ments that the victim was acting to defend himself from

defendant, only to immediately retract that position. At

most, the above exchange in context would lead to the infer-

ence that defendant was being untruthful, which, as we have

explained, was both undisputed and clearly established by

the earlier, nonderivative part of the interview.

Moreover, the jury watched the videotaped inter-

view played at trial and would have seen no change in the

tone of the conversation or the interaction between the offi-

cers and defendant from before the contents of his phone are

Cite as 370 Or 273 (2022) 301

mentioned and after that occurred. Although the officers had

confronted defendant with inconsistencies in his own state-

ments and inconsistences between his statements and infor-

mation they had obtained from other witnesses and sources,

and defendant had changed his story at times and given

multiple versions of his answers, the nature of the interview

was the same throughout. More importantly, as discussed

in detail above, the content of defendant’s statements that

the jury heard before the reference to the phone’s contents

and afterwards did not change appreciably. Defendant had

already abandoned the drive-by shooting explanation for his

gunshot wound. He had admitted that he knew Pree, that

Pree had introduced him to the victim, and that he had been

present at the robbery. It would have been clear to the jury

that defendant’s subsequent statements, like his previous

statements, were often evasive, vague, and ambiguous, but

not otherwise incriminating.

Finally, the arguments of the parties at trial would

have confirmed for the jury that the statements defendant

challenges were not considered significant by either party,

presumably because they were not different in kind from

much of the other evidence that came in without objection.

Neither the state nor defendant referred to any of the three

challenged statements in their opening statements or closing

arguments, other than a brief reference during the state’s

closing argument, without commentary, to defendant’s state-

ment that he “d[idn’t] know” whether he wanted to kill the

victim. Indeed, during its closing, the state replayed a por-

tion of the videotape interview in which defendant gave his

explanation of the crime—how Pree “put a knife” to the vic-

tim’s neck and the victim got out of the car to shoot Pree. He

stated, “This was something Pree did (inaudible)[,] he just

wanted me there for like protection or something.” But the

portion of the video that was replayed was before the point

at which police confronted defendant with the call logs and

texts taken from his phone.

Instead of emphasizing, or even mentioning, the

challenged interview statements, the parties’ closing argu-

ments focused on whether the victim’s extensive testimony

about the robbery and shooting, and defendant’s and Pree’s

respective roles, was credible. The arguments also touched

302 State v. Thompson

on the physical evidence, including the facts that the vic-

tim’s wallet and identification were found in the apartment

where defendant was staying, as was the knife with the vic-

tim’s blood on it. The state’s arguments also reviewed the

victim’s consistent testimony that defendant, not Pree, had

wielded the knife, and that defendant, not Pree, had fled

the scene after the attempted robbery. Both parties argued

about the inferences that could be drawn from the specific

locations of the individuals involved during the robbery and

when the shots were fired. Neither defendant nor the state

seemed to believe that the equivocal statements to which

defendant now points would make much difference one way

or the other in the jury’s consideration of the charges.

In sum, our review of the record and consideration

of defendant’s statements persuades us that the trial court’s

error in failing to suppress them was harmless. The infer-

ences of guilt that defendant urges us to draw from the three

statements are simply not there or are independently sup-

ported by unchallenged evidence, rendering the challenged

statements cumulative. Accordingly, despite the trial court’s

error and the state’s unlawful retention of defendant’s phone

without a warrant, we affirm.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.