482 P.3d 140
Or. Ct. App.2021Background
- From 2016–2017 Surf Pines residents reported repeated nighttime peeping incidents; several victims were teenaged girls or young women observed through windows while undressed or engaged in sexual activity.
- One victim (M) installed video surveillance and captured a person at a window; two surveillance clips showed a person with a distinctive hood loop and matching jacket.
- Defendant, a Surf Pines resident, was arrested Feb 16, 2017 near the scene; he carried binoculars, toilet paper, a flashlight, and a cell phone and refused consent to search the phone.
- A magistrate issued a warrant to search the phone (limited to images/videos since Jan 2, 2016) based on an affidavit that combined the surveillance identification facts with the detective’s training/experience about voyeurs’ use of electronic devices; the search yielded >7,200 photos and ~70 videos, some showing underage victims.
- Subsequent warrants for defendant’s residences and vehicles relied heavily on the phone evidence; trial convictions followed on invasion of privacy, stalking, trespass, and six counts under ORS 163.670 (using a child in a display of sexually explicit conduct).
- On appeal the court held the warrant to search the phone lacked the required nexus (training/experience alone could not connect the phone to the crimes), suppressed the phone and derivative evidence, reversed the six ORS 163.670 convictions (statutory construction: defendant did not “permit” the sexual conduct), affirmed the trespass conviction, and remanded remaining counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of warrant to search defendant’s cell phone | Affidavit + officer training/experience created probable cause that phone would contain images/videos of voyeurism | Affidavit lacked specific facts linking defendant’s phone to the peeping; no one saw the peeper using a phone | Warrant invalid; officer experience alone did not supply the necessary nexus to the phone |
| Validity of warrants for residence and camper (derived from phone evidence) | Later warrants were supported by phone evidence and other facts | If phone search unlawful, derivative warrants lack probable cause | Derivative warrants invalid; residence/camper evidence suppressed because they relied on phone evidence |
| Sufficiency of evidence for ORS 163.670 (using a child in a display) | Defendant “permitted” recordings by permitting himself to record minors while peeping; statute covers permitting recording | Statute requires permitting the child to participate or engage in sexual conduct for observation/recording; defendant did not permit the sexual acts | Convictions under ORS 163.670 reversed; statutory text requires permitting the child’s participation/engagement in the sexual conduct |
| Judgment of acquittal as to one trespass count | State: evidence sufficed | Defendant: argued insufficiency | Court affirmed the trespass denial (no written discussion) |
Key Cases Cited
- State v. Van Osdol, 290 Or App 902 (Or. App. 2017) (search-warrant validity standard; warrants presumptively valid)
- State v. Williams, 270 Or App 721 (Or. App. 2015) (probable-cause nexus requirement: more likely than not evidence will be at place to be searched)
- State v. Mansor, 363 Or 185 (Or. 2018) (recognizing heightened privacy interests in cell phones)
- State v. Daniels, 234 Or App 533 (Or. App. 2010) (training/experience may support a warrant only when connected to defendant-specific facts)
- State v. Aguilar, 307 Or App 457 (Or. App. 2020) (police experience cannot substitute for specific factual proof of a crime)
- State v. Friddle, 281 Or App 130 (Or. App. 2016) (upholding search of an identified device when objective facts tied that device to crimes; rejecting broad device searches without such ties)
- State v. Clay, 301 Or App 599 (Or. App. 2019) (construction of ORS 163.670: criminalizes permitting a child to engage in sexual conduct for observation/recording)
- State v. Miller, 254 Or App 514 (Or. App. 2013) (officer generalizations about criminal habits insufficient to connect criminal activity to a particular place)
- State v. Sunderman, 304 Or App 329 (Or. App. 2020) (training/experience insufficient to create probable cause absent specific facts tying contraband to defendant)