State v. Serrano
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296 April 19, 2023 No. 184 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JORGE ULISES SERRANO, Defendant-Appellant. Marion County Circuit Court 19CR02471; A173250 Thomas M. Hart, Judge. On respondent’s petition for reconsideration filed March 17, 2023, and appellant’s response filed March 23, 2023. Opinion filed March 8, 2023. 324 Or App 453 (2023). Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara A. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, and Lagesen, Chief Judge, and Aoyagi, Judge. TOOKEY, P. J. Reconsideration allowed; opinion modified; adhered to as modified. Cite as 325 Or App 296 (2023) 297 TOOKEY, P. J. In a petition for reconsideration, the state requests clarification of our opinion in State v. Serrano (A173250), 324 Or App 453, ___ P3d ___ (2023), as to whether the opinion disposes of defendant’s second assignment of error, which challenged the trial court’s denial of defendant’s motion in limine to exclude nonresponsive material discovered on defendant’s cell phone. We allow reconsideration to clarify that our discussion of the first and second assignments of error, see id. at 457-58, although explained in terms of the motion to suppress, also relates to the trial court’s ruling on the motion in limine, and that the trial court erred in denying defendant’s motion in limine. We also clarify that our decision relating to the trial court’s rulings is limited by defendant’s motion in limine and motion to suppress, which sought to exclude evidence discovered during the two warranted searches of defendant’s cell phone. If, and to the extent defendant seeks suppression of additional evidence based on the principles articulated in the opinion, that would require a new motion to suppress. Finally, we amend the opinion to clarify that our conclusion that the error in denying the motion to suppress was not harmless is not based on charges having been brought. Thus, see id. at 467, we delete “the charges in this case stem from the investigation triggered by discovery of the nonresponsive material on defendant’s cell phone, and” from the final sentence of the paragraph. As modified, the sentence now reads: “The denial of the motion to suppress therefore was not harmless, because highly probative evidence used to prove the state’s case came from the nonresponsive material discovered on defendant’s cell phone.” Reconsideration allowed; opinion modified; adhered to as modified.
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