State v. Burnham, 412 P.3d 1233

Defendant was convicted of multiple offenses including unlawful hunting, trespass, and theft; appeal challenged denial of motion to suppress evidence from a search warrant.
This court in State v. Burnham held the warrant was overbroad because it authorized seizure of “any and all” computer equipment and electronic devices without probable cause that all such devices contained evidence of trespassing and unlawful hunting.
The overbroad portion led to discovery of GPS location data in photos on the defendant’s laptop, which the state used to prove hunting- and trespass-related counts.
Other items seized at the home included two road signs the state introduced as theft evidence; those signs were not covered by the warrant’s listed offenses.
The state petitioned for reconsideration to clarify that only evidence seized under the overbroad warrant portion should be suppressed, and that other evidence seized under valid portions should remain admissible.
The court allowed reconsideration, modified its disposition: suppressed laptop-GPS evidence and reversed convictions on Counts 2, 3, 5, 6, and 7; vacated and remanded convictions for theft of the two signs (Counts 8 and 9) for factual findings on plain-view or other exceptions; otherwise affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether search warrant was overbroad as to all computer/electronic devices	Warrant portion authorizing search of “any and all” computer equipment lacked probable cause for all such devices	Sought suppression of evidence obtained from digital devices as product of overbroad warrant	Court: Warrant was overbroad as to computer/electronic devices; GPS data from laptop should have been suppressed
Scope of suppression after finding partial invalidity of warrant	Only items seized under the invalid portion (GPS data) must be suppressed; remainder should stand	All evidence seized should be suppressed (implicit)	Court: Invalid portion may be excised; suppress only items seized under that portion; valid portions remain effective
Lawfulness of seizure of two road signs not covered by warrant	Signs were not seized under warrant and thus inadmissible unless exception applies	Signs could be admissible if discovered in plain view from lawful vantage or during a lawful, properly limited search	Court: Trial court made no findings on plain-view or related exceptions; remand for factual findings; convictions for sign theft vacated and remanded
Harmless error as to counts relying on suppressed evidence	Suppression of GPS data is not harmless to hunting/trespass convictions	Error might be harmless if other evidence independently supports convictions	Court: Error was not harmless for Counts 2,3,5,6,7; those convictions reversed and remanded

State v. Burnham, 287 Or. App. 661 (holding warrant overbroad for searching all computer equipment without particularized probable cause)
State v. Vermaas, 116 Or. App. 413 (overbroad portion of warrant may be excised and balance upheld)
State v. Foster, 347 Or. 1 (plain-view requires observation from a lawful vantage point)
State v. Ainsworth, 310 Or. 613 (discussing lawful vantage point and unaided observation for plain-view)
State v. Sagner, 12 Or. App. 459 (officers’ presence in home tied to validity of portions of warrant; evaluate encounter of challenged evidence during properly limited search)
State v. Carter, 200 Or. App. 262 (remand appropriate when material factual issues remain about plain-view elements)
State v. Sargent, 323 Or. 455 (requirement that incriminating character be immediately apparent for plain-view exception)