State v. Bock (A169480)
485 P.3d 931
Or. Ct. App.2021Background
- Victim and his 12‑year‑old daughter were attacked in the victim’s driveway; victim was punched and shot at; attackers later identified as defendant (Bock) and Onofre.
- Police seized a cell phone from the vehicle the men used and obtained a warrant with four commands (identify owner/user; communications 5/26–5/27/17; location data 5/26–5/27/17; any other evidence related to listed crimes on 5/27/17).
- Forensic examiners found a photo of a gun on the phone resembling a weapon recovered near the scene; the state introduced the photo at trial.
- Jury convicted Bock of multiple counts including attempted aggravated murder, attempted murder, second‑degree assault, felon in possession of a firearm, first‑degree burglary, and interfering with an officer; Bock appealed, challenging suppression, jury instructions on self‑defense, and the use/acceptance of nonunanimous verdicts.
- The Court of Appeals held the warrant commands to identify owner/user and to search for "any evidence" of the crimes were insufficiently particular under Article I, §9; the gun photo was therefore improperly admitted; the court also found error in instructing self‑defense from the victim’s perspective and in permitting/accepting nonunanimous verdicts (Ramos issue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of warrant command to search for evidence identifying owner/user of phone | Command was as specific as practicable for varied owner‑identifying material; no temporal limit needed for ownership evidence | Too broad and nonspecific; authorizes rummaging through all data to identify owner — tantamount to a general warrant | Command invalid for lack of particularity; authorizes impermissible discretion and broad rummaging |
| Validity of warrant command to search for "any evidence" of listed crimes (including felon‑in‑possession) | Searching for evidence of felon‑in‑possession is inherently specific enough to include indicia (e.g., photos of a gun) | A warrant to seize all evidence of a crime on a phone is a general search; firearms are not contraband located on a phone so the command is overbroad | Command invalid as overbroad under Mansor and related precedent; not sufficiently particular |
| Use of gun photo under plain‑view doctrine when examiners searched photos for location metadata | Photo was in plain view while searching photos for location data; examiners had probable cause (known felon) so plain view permitted seizure/use | Digital searches differ from physical searches; allowing plain view here would permit general electronic rummaging contrary to Article I, §9 and Mansor | Plain view inapplicable for digital searches of this breadth; admitting the photo violated Mansor protections and was error |
| Jury instruction framing self‑defense from victim’s perspective (including instructions enabling jury to find victim’s force lawful) | ORS 161.215(2) requires assessment of whether victim’s force was actually unlawful; thus victim’s perspective is relevant | Self‑defense depends on defendant’s reasonable belief under ORS 161.209; victim’s actual belief or whether force was lawful is irrelevant | Court erred: self‑defense must be evaluated from defendant’s reasonable belief; victim’s perspective was irrelevant; instruction was incorrect |
| Instruction and acceptance of nonunanimous verdicts (10–2/11–1) | Jury could be instructed under then‑existing state practice; verdicts valid | Nonunanimous verdicts violate Sixth Amendment per Ramos | Instruction and acceptance of nonunanimous verdicts unconstitutional under Ramos; convictions based on nonunanimous verdicts reversed |
Key Cases Cited
- State v. Mansor, 363 Or 185 (2018) (electronic‑device warrants must describe, as specifically as reasonably possible, the information sought and limit use of nonresponsive data)
- Ramos v. Louisiana, 590 U.S. _ (2020) (nonunanimous jury convictions violate the Sixth Amendment)
- Coolidge v. New Hampshire, 403 U.S. 443 (1971) (rationale for plain‑view doctrine explained; seizures in plain view do not convert search to general warrant)
- Minnesota v. Dickerson, 508 U.S. 366 (1993) (practical justifications for plain view/ seizure of contraband during lawful encounters)
- Arizona v. Hicks, 480 U.S. 321 (1987) (limitations on plain‑view seizures and need for probable cause)
- State v. Savath, 298 Or App 495 (2019) (distinguishes contraband‑style commands for electronic searches; some possession‑offense searches may be particular when files are themselves contraband)
- State v. Rose, 264 Or App 95 (2014) (upholding warrant language to search electronic files for child pornography where files are contraband)
- State v. Currin, 258 Or App 715 (2013) (plain view seizure requires probable cause that item is evidence of a crime)