As part of the text of the statute, however, we also consider the Supreme Court's prior construction of ORCP 46 B(2)(c). State v. Reid, 319 Or 65, 68-69, 872 P2d 416 (1994) (Supreme Court's prior construction of a statute becomes a part of the statute as if written into it at the time of its enactment.). In Pamplin, the Supreme Court examined whether the sanction of dismissal with prejudice under ORCP 46 B(2)(c) required a showing of bad faith, willfulness, or a similar degree of fault.

But, even if the warrant is sufficiently specific, it must not authorize a search that is "broader than the supporting affidavit supplies probable cause to justify." State v. Reid, 319 Or 65, 71, 872 P2d 416 (1994). The state argues that a warrant is sufficiently specific and not overbroad—and therefore satisfies the particularity requirement—if the warrant identifies the crime being investigated.

But, even if the warrant is sufficiently specific, it must not authorize a search that is "broader than the supporting affidavit supplies probable cause to justify." State v. Reid , 319 Or. 65, 71, 872 P.2d 416 (1994). The state argues that a warrant is sufficiently specific and not overbroad—and therefore satisfies the particularity requirement—if the warrant identifies the crime being investigated.

That context makes it more likely that, as between two possible readings of the warrant, the warrant authorizes a search of both the premises and the persons frequenting them instead of authorizing only a search of the persons frequenting the premises. To be sure, as defendant argues, the phrase "any persons frequenting" is awkward, but it is not substantially different from the phrase "persons present" in State v. Reid, 319 Or. 65, 67, 872 P.2d 416 (1994). Both phrases succinctly describe the general class of persons who may be searched in addition to the premises on which they are found.

348 N.E.2d 101, 105 (1976) (upholding "all persons" warrant because supporting affidavit made it "probable that any person in the apartment was a participant in the trafficking in heroin there") (emphasis added); State v. Allard, 674 A.2d 921, 923 (Me. 1996); State v. Hinkel, 365 N.W.2d 774, 776 (Minn. 1985); State v. Pecha, 225 Neb. 673, 407 N.W.2d 760, 765 (1987); State v. Sims, 75 N.J. 337, 382 A.2d 638, 646 (1978) (affidavit must provide "probable cause to believe that all persons who might be found on the premises of the service station were engaged in illegal gambling activities") (emphasis added); Nieves, 369 N.Y.S.2d 50, 330 N.E.2d at 34 (affidavit "must establish probable cause to believe that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the articles sought") (emphasis added); State v. Kinney, 83 Ohio St.3d 85, 698 N.E.2d 49, 54 (1998), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 214 (1999); State v Reid, 319 Or. 65, 872 P.2d 416, 419 (1994); Commonwealth v. Wilson, 429 Pa.Super. 197, 631 A.2d 1356, 1358 (1993); State v. Jackson, 616 N.W.2d 412, 418 (S.D. 2000); State v. Covington, 904 P.2d 209, 210-11 (Utah Ct.App. 1995); Morton v. Commonwealth, 16 Va. App. 946, 434 S.E.2d 890, 893 (1993) ("the affidavit supported a finding of probable cause that those persons present in the private residence would be engaged in criminal activity"); State v. Ballou, 148 Vt. 427, 535 A.2d 1280, 1286 (1987) (evidence seized pursuant to "all employees" warrant admissible because affidavit supplied probable cause that all employees played role in criminal enterprise); State v. Carter, 79 Wash. App. 154, 901 P.2d 335, 338 (1995). New Mexico and Texas have both held that evidence seized pursuant to an "all persons" warrant was inadmissible because the supporting affidavit did not supply probable cause to search the particular defendant, but have not stated a general test governing when an "all persons" warrant is constitutional.

If, however, a warrant purporting to authorize a search is sufficiently ambiguous that it is impossible to identify with a reasonable degree of certainty the particular premises authorized to be searched, the warrant may not be executed and any search pursuant to it is illegal, whether of the premises actually intended or not, because of the danger that the privacy of unauthorized premises will be invaded."State v. Reid, 319 Or 65, 69-70, 872 P2d 416 (1994) (quoting State v. Ingram, 313 Or 139, 144, 831 P2d 674 (1992)) (internal quotation marks omitted; emphasis deleted); see also State v. Bridewell, 306 Or 231, 241-47, 759 P2d 1054 (1988) (Peterson, C. J., concurring in part and dissenting in part) (describing historical events that gave rise to Article I, section 9). Judge Deady, who participated in drafting the Oregon Constitution, later explained that

In addition, a search warrant must not be overbroad, that is, a search warrant "must not authorize a search that is 'broader than the supporting affidavit supplies probable cause to justify.'" Mansor, 363 Or at 212 (quoting State v. Reid, 319 Or. 65, 71, 872 P.2d 416 (1994)); see also Cannon, 299 Or.App. at 626 ("[T]he gravamen of an overbreadth challenge is an asserted lack of probable cause for the invasion of interests in privacy in premises or items."

”Rose , 264 Or.App. at 107, 330 P.3d 680 (internal quotation marks omitted); see also State v. Reid , 319 Or. 65, 71, 872 P.2d 416 (1994) (“[A] warrant must be definite enough to identify with a reasonable degree of certainty what is to be searched.”). Further,“[i]f the search warrant describes premises in such a way that it makes possible the invasion of [the] interest in privacy without the foundation of probable cause for the search, the warrant is too broad and therefore constitutionally defective.”

See State v. Sargent, 323 Or. 455, 462, 918 P.2d 819 (1996) (holding that when no item from a search warrant was tainted by potentially trespassory conduct, there is no need to suppress the evidence). Defendants rely on principles articulated in two cases, State v. Ingram, 313 Or. 139, 831 P.2d 674 (1992), and State v. Reid, 319 Or. 65, 872 P.2d 416 (1994), in support of the trial court's ruling. Those are cases decided under ORS 133.565(2)(b).

For the purposes of the qualified immunity analysis, this court will accept Plaintiff's argument that the search warrant in this case violated Massachusetts law because it authorized the search of any person present at an apartment where a family resides, namely, a two-year old. Without a valid warrant and based on the undisputed facts, this court will also assume that there was insufficient evidence to justify Eddings' strip search of Plaintiff. And as noted above, Massachusetts law concerning "any person present" warrants and strip searches was clearly established when Eddings strip searched Plaintiff. See State v. Reid, 872 P.2d 416, 419 (Or. 1994) (noting that the presence of children does not support a finding that all persons present at a residence are engaged in criminal activity); see also Commonwealth v. Souza, 675 N.E.2d 432, 436 (Mass.App.Ct. 1997) (citing Reid favorably). The question that remains, therefore, is whether a reasonable officer in Eddings' and Feeney's situation would have understood that the strip search of Plaintiff pursuant to the instant "any person present" warrant was unlawful.