State v. Xie

── State v. Xie ── Court: Court of Appeals of Oregon Date: May 13, 2026 Author: Jacquot Category: General No. 419 May 13, 2026 623 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. XISHI XIE, Defendant-Appellant. Marion County Circuit Court 22CR10101; A184501 J. Channing Bennett, Judge. Submitted April 15, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil Francis Byl, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Interim Deputy Attorney General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. JACQUOT, J. Reversed and remanded for further proceedings; other- wise affirmed. 624 State v. Xie JACQUOT, J. In this criminal appeal based on a conditional guilty plea under ORS 135.335(3),1 defendant challenges the denial of his motion to suppress and asks us to reverse and remand to give defendant the option of withdrawing his plea. The state charged defendant with felony unlawful manufac- ture of a marijuana item, ORS 479C.349,2 a class C felony. In a single assignment of error, defendant argues that the affidavit failed to establish probable cause for the offense of unlawfully manufacturing a marijuana item and that the search commands in the warrant were insufficiently specific and overbroad. The parties agree that if we “conclude that some aspect of the warrant is insufficiently specific or over- broad,” the correct remedy would be a remand to the trial court for defendant to decide whether to withdraw his guilty plea, followed by a hearing pursuant to State v. Turay, 371 Or 128, 532 P3d 57 (2023). We reverse as to overbroad search commands for searches of digital devices and remand for a Turay hearing and otherwise affirm. On appeal, defendant first challenges whether the affidavit established probable cause for the issuance of the warrant. Second, defendant argues that the search commands in the warrant were insufficiently specific and overbroad, in violation of Article I, section 9, of the Oregon Constitution. The state responds that neither of defendant’s arguments requires reversal because the affidavit provided probable cause to believe that evidence of the unlawful 1 ORS 135.335(3) provides: “With the consent of the court and the state, a defendant may enter a condi- tional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.” 2 ORS 475C.349 was previously numbered ORS 475B.349. For clarity, we use the current citation for this statute. ORS 475C.349 provides, in relevant part: “(3) Unlawful manufacture of a marijuana item is: “* * * * * “(b) A Class C felony, if: “(A) A person unlawfully manufactures marijuana and the total num- ber of plants in the genus Cannabis within the plant family Cannabaceae exceeds 12 plants * * *.” Nonprecedential Memo Op: 349 Or App 623 (2026) 625 manufacture of marijuana would probably be found in the subject residence and the search commands were specific enough to apprise the executing officers of which items were subject to search and seizure. We review a challenge to the sufficiency of a search warrant affidavit for legal error. State v. Castilleja, 345 Or 255, 264, 192 P3d 1283, adh’d to on recons, 345 Or 473, 198 P3d 937 (2008). In co