*1 30, 2009 September August 2008, cross-appeal dismissed Argued and submitted OREGON, STATE OF Plaintiff-Appellant, Cross-Respondent, v. BELLAR, LEE
DONALD Defendant-Respondent,
Cross-Appellant. Circuit Court County Multnomah 050230673; A129493
Before Edmonds, Wollheim, and Judge. Sercombe, EDMONDS, P. J. dissenting.
Sercombe, J., P. J.
EDMONDS, charging defendant case in this criminal The encouraging in the sec- abuse child sexual counts of with 40 after the degree, the state initiated 163.686, was ORS ond part part denied allowed trial court pur- cross-appeals Defendant evidence. motion to denying part the order to ORS 138.0401 suant Subsequently, its suppress. dismissed the state motion to whether, under ORS appeal. isus threshold issue before may defen- to consider discretion exercise our 138.040, we appeal. cross-appeal its has dismissed after the state dant’s holding Shaw, 338 Or in State v. that, under the We conclude (2005), required defen- to dismiss we are 586, 113 P3d cross-appeal. dant’s charges recites court’s order
The trial images discovery against out of the arose computer computer pornography on defendant’s child sought suppressed repair to be evidence technician. images of his statements consisted defendant depicting September pornography. 2003, defendant child repair shop *3 computer Defen- Wells. owned his to took copy computer repair to files to his dant asked Wells they on defendant’s could be loaded the hard drive so from new files from copying process computer. Wells involved Part of computer computer in his own onto defendant’s preserve that there was in the event those files order to computer. restoring problem While to defendant’s the files computer, file copying came across a Wells files to his gaming activities. associated with a name that Wells with cop- the file defendant wanted uncertain whether was Wells ied to his new opened Consequently, computer. he the file appeared images multiple chil- to be of what and discovered engaged acts. in sexual dren provides, part: 138.040 ORS may 138.050, appeal to the “Except provided the defendant under ORS as judgment 138.053 in a Appeals described under ORS or order from
Court appeals pursuant court, may cross-appeal to ORS the state when circuit 138.060(l)(c) (2)(a). cross-appeal: following apply upon or such The “(1) may appellate review: The court “(a) proceeding.” order or Any in an intermediate decision of the court picked up computer Wells,
After defendant his reported discovery mother, his who Wells his works for the days County later, Multnomah Sheriffs Office.A few Wells County deputy was contacted a Multnomah sheriff who report City informed him that the would referred to the be nothing Portland Police Bureau. Wells heard further until approximately two months later he was contacted when County Deputy interim, Sheriff Multnomah Biles. copy had Wells decided to defendant’s files existed on his computer. He transferred files to a CD and own deleted them from his own then
computer. give Wells, When Biles contacted Wells offered to containing computer CD files Biles. Biles took put CD and to his the CD office, the puter, went back in his com- images, images viewed the and confirmed that the depicted pornography. investigation child was then jurisdiction determined to be within the Portland agency. Police Bureau and transferred to that Andrews, a detective with the Portland Police Bureau, viewed the CD with defendant’s files on it that had “gaming” opened by made been Wells. file Wells was pornographic images. determined to contain Andrews belonging also viewed another file entitled “Thumbs 31” defendant that was on the Wells CD and found more
images pornography. procured of child Andrews then a search war- rant for the search of defendant’s residence. When the offi- executing they cers the search warrant defendant, contacted warning had him read a written Miranda and signed agreeing speak a consent form with the officers. During ensuing interview, defendant admitted that he images pornography knew that the of child existed on his computer explained images put but that the had been there person bought computer. from whom he had While ongoing, per- the interview was seized a number of computers including sonal items files from opened subsequently defendant’s residence and or viewed *4 files. charged, initially After was defendant he moved to suppress police that the evidence obtained from his com- puter arguing residence, files at his the search warrant by police his com- authorize a search of did not
obtained storage supplemen- In a puters media. electronic and related impermis- argued police suppress, that the he motion to tal by sibly expanded examining private files search of defendant’s Wells’s provided copy without of files Wells supplemental motion, he contended second In a warrant. that copying computer files Wells was his the initial enforcement officials. Addition- of law done at the direction ally, to contents of filed a controvert motion request police support of their had filed in affidavit that the suppress state- warrant, he moved to his a search for contemporaneously with the search made ments that were his residence. opinion and a court, in a memorandum
The trial agreed opinion, supplemental defen- with memorandum suppress. the lan- motion to It reasoned that dant’s initial police guage authorize the to look in the warrant did not images computers and seized from defen- on the disks According court, trial the warrant dant’s residence. supported by probable the search cause and authorized was in the residence for a list items warrant of defendant’s subsequent or view- items a seizure of those but rejected ing It defendant’s of the contents of the seized items. acting agent police. argument was as an that Wells sup- supplemental granted defendant’s motion to court also viewing police press as a result of the evidence obtained only provided the CD them file contained on Wells but pri- scope the extent that their search exceeded the to vate search Wells. The trial court also denied defendant’s suppress the state- motions to controvert the evidence and to ments warrant was executed. that made to at the the search he the detectives time rulings, order
Pursuant its the court entered an suppressing through the evidence that obtained grant- search of items seized from defendant’s residence and part supplemental suppress ing denying in motion to “police their evidence that the obtained in connection with provided by computer repairman to them review the CD Ron supple- The order denied defendant’s second Wells.” also suppress, controvert, motion mental motion to he the statements that and defendant’s motion to *5 police. appealed. had made to The state In its notice of appeal, Oregon, hereby stated, Plaintiff, the state “State of gives appeal notice of from the ORDER GRANTINGDEFEN- days SUPPRESS[.]” DANT’S later, MOTIONS TO Four cross-appeal appealing defendant filed notice of “to [the portions order] extent suppress.” denied of defendant’s motion to cross-appealed pretrial
Defendant also from other Approximately year orders entered the trial court. one appeal, citing later, the state moved to dismiss its the follow- ing reasons:
“After careful evaluation of appeal, this and after consulta- tion County Attorney’s Office, with Multnomah District the state has expeditious concluded that it would be more challenged reseize the rant, evidence means of a search war- pursue rather than to appeal this of the trial court’s suppressing order evidence obtained from defendant’s computer.” pursue
Defendant thereafter continued to
his cross-
appeal, making
assignments
per-
five
error,
three of which
rulings
suppress:
tain to the trial court’s
on the motions to
(1)
by denying
The trial court erred
defendant’s motion to
provided by
the results of Bile’s
view the CD
(2)
product
prior
Wells;
The search warrant was the
(3)
unlawful
CD;
search of the
The statements obtained
product
illegal
from defendant were the
of an
search.
In Shaw, the court identified, for the
time,
first
appellate
circumstances under which
courts should elect statutory
exercise their
discretion to review a cross-appeal under ORS 138.040.
The reasons for that two-fold, limitation are accord- ing to the Shaw court. First, defendant, state, unlike the opportunity challenge any has a full intermediate adverse ruling trial court if the defendant is If convicted. a defendant acquitted, rulings is then intermediate become moot. Accordingly, a limitation on the exercise of discretion under judicial promotes cross-appeal of a defendant’s ORS 138.040 possibil- thereby negating the
economy appellate level, at the judicial on issues expenditure and resources ity time ofthe Id. is convicted. defendant unless the not arise that will 618. necessarily prolongs pretrial appeal
Second, a state’s against proceeding a defendant pendency of a criminal remaining in may result in the cases in some and custody during appeal. pendency The consideration ofthe appeal, along cross-appeal by the state’s court, with this of a Supreme Court, possibility together ofreview with being brought delay to trial. only the defendant adds to sup- “strongly view, those considerations court’s In the Shaw port ] of its limit the exercise this court should view *6 chal- a defendant’s to review under ORS 138.040 discretion rulings cross- lenges raised intermediate to a trial court’s appeal.” Id. at 618. underlying expressing policies the the addition to
In appellate ORS court under of an on the discretion limitation the circum- to define court undertook 138.040, the Shaw regarding be exercised: that discretion should when stances light above, we con- articulated of the considerations “In cross-appeal, [to] respect this that, a defendant’s clude ordinary practice its consideration be to limit will court’s inextricably assignments only that are of error to those assignments factually legally, to the state’s linked, or either Only appeal. circumstances under those factual on of error reasonably a defen- that our review of be assured can we cross-appeal assignments not contrib- error on will of dant’s delay pretrial unnecessarily from a state to the ute under ORS 136.060(2)(a).” Or at 618-19. 338 question becomes, Shaw, whether then under inextricably assignments linked, are of error
defendant’s
assignments
factually
legally,
of error
to the state’s
either
ruling
authorized
warrant
that
to the trial court’s
personal
of
not a search
effects but
a seizure of defendant’s
requirements
of
that the
We conclude
their contents.2
Atkinson,
Shaw,
holding
v.
given
our decision in State
We note that
(1984),
(1983), aff'd,
does not
The trial court’s *7 authority by provisions conferred the ofthe search warrant to search defendant’s residence and seize items from there is easily disentangled viewing from the issue whether Bile’s by of the CD made Wells from Wells’s was an meaning I, unreasonable search within the of Article section analysis precisely 9.3 Indeed, the trial court’s did that when it part ruled in favor of defendant on of his motion to and in favor the state on the remainder the motion. Fac- tually, by the issues are framed circumstances, different occurring repair shop occurring at Wells’s and those legal Also, defendant’s residence. the issues framed the 3 assignments assignment. Defendant’s other of error are derivative of his first 88 inextricably not to above are
two discrete events referred regard scope author- of warrant The issue with linked. ity legal a “search” from whether occurred is a different issue A when a brief discussion of Biles Wells’s CD. when viewed the I, 9, under Article illustrates “search” occurs point. government Generally, the a occurs when search possessory protected of the a or invades commonly Privacy are circumscribed defendant. interests space per they private space i.e., of a exist, in which (1998). 372-73, P2d Smith, 366, 327 Or 963 642 son. State v. physical a or sen abstract, the absence of Nonetheless, in necessarily private space sory a defeat does not invasion of a pur government a for that conduct constitutes claim poses Meredith, 299, I, State 337 Or of Article section 9. v. (2004). example, Campbell, 304, 96 For in State v. P3d (1988), police, acting a P2d without 157, 306 Or radio transmitter to the defen warrant, attached a search dant’s vehicle that them track its location. enabled monitoring Supreme held the attachment and Court signal a search under from transmitter constituted I, Id. Article section 9. at 172.4
It discussion that defendant’s follows the above factually assignments inextricably linked, error are not legally, appeal circum to the state’s because the factual legal are dis and the issues defendant frames stances legal upon to the factual circumstances and issue similar predicated. result, a under As which the state’s was holding Shaw, must decline to exercise our discre we assign under review of defendant’s
tion
ments of error on
ORS 138.040 to
cross-appeal
at this time.5
izen
police);
of electronic surveillance such as occurred
“search” occurs when
that information to the
Fourth Amendment
papers belonging
(1921)
(1951)
5 Properly framed,
removed
Defendant does
(holding
(holding
see also Burdeau
incriminating
that there was no violation Article
that no
to the defendant and delivered them
to the United States Constitution when
a third
the issue raised
police.
government
v.
appear
McDowell,
person
evidence from a wrecked car
See,
to contend that his
e.g., Walker v.
acquires
search occurred within
256 US
private
Campbell
465, 475,
Penner,
information and then delivers
to law enforcement
section when a
cross-appeal
41 S Ct
Meredith.
was invaded
delivered
thief stole
542,
meaning
65 L
is whether
The dissent
The dissent criticizes the
majority
deferring
Judge’s
for not
to the Chief
exercise of
preliminarily
discretion when he
denied the state’s motion
cross-appeal
to dismiss defendant’s
on the basis of the
holding
App
(Sercombe,
dissenting).
in Shaw. 231 Or
at 92
J.,
respect,
With
our decision is based not on
exercise of
part
understanding
unfettered discretion on our
but
our
holding
Rogers,
in Shaw. See State v.
282, 312,
330 Or
(2000) (“If
only
legally
Also,
of the dissent’s
is based on
appeal incorporated by
the fact that the state’s notice of
ref-
portion
granting
erence the
of the court’s order
defendant’s
police
motion to
viewing
evidence derived from the
copied
file,
“Thumbs 31”
a file that Wells had
but not
Apparently,
appeal,
viewed.
that inclusion in the notice ofthe
ought
change
in the
view,
dissent’s
the result under Shaw.
persuaded argument.
We are not
the dissent’s
The state’s
appeal implies
longer
motion to dismiss its
that it no
relies on
any evidence from the
trial
file,”
“Thumbs 31
indeed,
concerning
legal
being
court’s order
a final
that file has the
effect of
appeal.
order because ofthe state’s dismissal ofits
It is
Arguably,
defendant maintained a
interest
in the information in his com
puter
though
files
See,
copied
even
he
authorized them
computer.
to be
to Wells’s
e.g.,
Johnson,
(2006)
State v.
319, 336, 131
340 Or
(holding
P3d 173
that the defen
cognizable privacy
calls).
dant had a
telephone
interest
in the content of his
Because we decline to exercise our discretion under ORS 138.040 to review defen
cross-appeal
expressed above,
dant’s
for the reasons
we do not decide whether a
private
“search” of a
“papers” by
defendant’s
government
information or
occurs
meaning
within the
party
possession
Article
section when a third
of such
a container authorizes the
to view the contents of the container. But see State
* * *
Tanner,
(1987) (“In
v.
312, 323,
general
tion of subsequent of a records, the issuance defendant’s search based defendant’s residence warrant for the search of police, sup- given Wells on the information light police in *9 pression made to the of statements defendant’s by policy court. Shaw discussed above of issues given delay in the The also contends that dissent cross-appeal, “postponing prosecution final resolution of the important case issues in this is search seizure significant squanders resources unfair to defendant App already expended at 92 on this case.” 231 Or of this court (Sercombe, dissenting). pointed J., court But, as Shaw by opinion, caused in its no unfairness to is out dismissal opportunity complete cross-appeal he will have his when suppression order if the trial court’s matter, not know evidence For that we do what convicted. light by at ofits intent to seek be offered the state trial will the issuance of another search warrant
to search the items Also, as to the resources from defendant’s residence. seized considering by cross- utilized court to date in defendant’s this unlikely, appeal, it is for the same reason that this case would finally made if we were decision us even be resolved jurisdiction. to exercise pronouncement conclude, Shaw,
We based on the cross-appeal refuse would fall that to to dismiss defendant’s outside boundaries the discretion conferred ORS 138.040 this court.
Cross-appeal dismissed; case remanded for further proceedings. dissenting.
SERCOMBE, J., respectfully majority’s I dissent from the dismissal presented cross-appeal. is defendant’s The issue whether this court should exercise its discretion consider defen- guides cross-appeal that dant’s under ORS 138.040. rule Shaw, 338 discretion, the exercise of that under State v. Or (2005), “ordinary practice” 586, 618, 113 that the P2d 898 is * * * assign- “only [defendant’s] of the court is to consider factually inextricably linked, error are either ments of to the state’s legally, assignments of error on In this appeal.” case, state appealed ruling granting motion some of the evidence suppress obtained from the exam- (CD) ination of the Wells compact disk because I, violated Article section of the One Oregon Constitution. assignments of error seeks review part same ruling denying motion to other evidence obtained from the police examination of the Wells CD. Same motion, same ruling, CD, evidence from the same all arising under Article 9—it is difficult to avoid the conclu- sion that the parties’ contentions were linked” “inextricably both “factually legally.”
The majority avoids that conclusion reaching Shaw focusing analysis on the ruling from which the See state “principally” appealed. App 86-87. state from a appealed July 22, 2005, order granting defen- dant’s motions to That order was suppress. adverse to the state in two respects. The order suppressed evidence that the “police through obtained their search of items seized from * * * [defendant’s] residence because the warrant did not *10 authorize a search of those items.” The the majority contrasts legal factual issues concerning that of the order part with defendant’s appellate contentions in applying the “inextrica- bly linked” test under Shaw. review, however, order under also suppressed
some of the “evidence police obtained in connection with their review of the CD provided to them by computer repairman Ron Wells.” The majority ignores the state’s appeal that the applying Shaw. Defendant assigns error part of order to trial the court’s of denial its motion to other evi- suppress dence seized part as of the of police review the Wells CD. Res- olution of that assignment of error involves the same motion to trial suppress, order, evidence, court and legal as analysis would be involved in determining equivalent the part of the state’s appeal. The parties’ respective contentions about the on evidence the Wells CD were “inextricably linked.”
Moreover, the issue of the court’s exercise of dis- its cretion this case under ORS 138.040 does not arise in the of course the “ordinary practice” this court. The dismissal of defendant’s cross-appeal point this after the years —four years cross-appeal, the
filing denial of after our two the Shaw, months the basis dismiss on state’s motion to cross-appeal, briefing one and over on the close of after the extraordinary. argued year be was after the case —would impor- delay, postponing final resolution Given that case unfair to defen- in this is and seizure issues tant search significant squanders court resources of this the dant already expended this case. on “ordinary practice”
Finally, not be the it should discretionary made the Chief decisions this court to revisit prior panel Judge the exer- of the court unless or a different authority. beyond the decision-maker’s cise of discretion was cross-appeal on the basis to dismiss The state’s motion Judge on Brewer an order Chief of Shaw was denied why court reasons 22, 2007. The order announced June deny exercising discretion under ORS 138.040 was its majority Perhaps exercise would motion to dismiss. justify differently. should not But difference discretion parties prior this a decision of court which reversal of briefing arguing the case. have relied in majority dis- Thus, errs in I conclude that would jurisdiction cross-appeal missing for lack of my view, court decide should under ORS 138.040. part trial court order that and reverse evidence obtained denied defendant’s motion My explained below, follow- reasons are from the Wells CD. ing history of the case. restated
THE FACTS against charges out of the dis- defendant arise computer by covery computer repair personal pornography child on his brought his old com- technician.1 Defendant operated by shop puter computer repair owned and computer, copy repair the files He Wells. asked Wells *11 drive, and transfer those files that existed on its hard transferring computer. floppy those files to a new disks for specifically look at the instructed Wells not to Defendant computer images are child concede that the found on his Defendant does not parties pornography do in briefs. pornography. as as the their I refer to them child image computer pri- contained files on the because files in the nude. pictures information, vate of his i.e., wife Wells copied the the hard entire contents of drive computer computer. copying own That is a to his standard protocol preserves mishap. data in event of a While copying files, Wells noticed file named “Sierra” that he recognized commonly gaming file as a name associated with activities. Wells was uncertain whether defendant would game want the puter. of a contents file transferred to new com- opened “multiple Wells the file discovered disturb- ing images appeared engaging be of what children in vari- computers ous sexual After his acts.” defendant retrieved repair shop, reported discovery from the Wells County Multnomah Sheriffs Office. matter was referred to the Portland Police Bureau. later,
Two months Detective Biles interviewed Wells repair shop. meantime, In the and on his own volition, copied containing images Wells the files the offensive to a CD computer. gave and then erased the files from his own Wells images the CD to Biles Biles. then viewed the on the CD on they his office pornography.2 and confirmed that contained child assigned was case to Detective Andrews. Biles gave opened CD, Andrews the who then and viewed the file identified as Wells the “Sierra” file and determined that it pornographic images. contained 287 addition, Andrews opened file another named “Thumbs 31” and found more images, approximately images for a total on the CD. Andrews interviewed Wells told who her that he believed images pornography there were 250 to 300 of child on defen- computer, describing pictures dant’s some in detail to the including ages detective, theof children and the nature of depicted. the sexual contact
Andrews obtained a search warrant and executed it at defendant’s residence. Detectives read the search warrant
2 The trial court noted: “Images using digital photograph viewer, from the CD were viewed digital which is as photograph available software. Detective Biles testified the images viewer used software he to view the on the CD allowed him to see 50 to images at once ‘thumbnail’ format.” *12 they him some to ask that wanted and told him defendant to questioned, however, he questions. defendant was Before warning signed con- and Miranda aloud a written read warning. understanding of the his form and indicated sent detectives, Despite being talk to the he did not have to told voluntarily. did so defendant encouraging on 40 counts was indicted
Defendant degree, Before ORS 163.686. sexual the second child trial, abuse suppress he con- evidence that moved to defendant unlawfully by police. Defendant tended was obtained moved computers suppress obtained from the to the evidence Relying during of the search warrant. execution seized Oregon Constitution, he contended 9, of I, section Article of the contents did authorize the search the warrant that only computers, and that the warrant seizure, their unsupported in Defendant fact. otherwise overbroad was suppress separately obtained from to evidence moved police war- CD without search examination of the Wells finally suppress of his moved to evidence rant. Defendant during police of the search the execution to statements warrant. sup- granted partially to trial court motions suppress
press. The to evidence court allowed motion only under the search warrant because warrant seized separate computers search of ofthe and not allowed seizure computers. suppress to evidence of defen- motion those police partially denied. The court statements was dant’s suppress partially the motion to evidence allowed and obtained from Wells denied lost CD. It concluded rights files had viewed in the been rights other, com- Wells, but retained those in the unseen July rulings puter 22,2005, in a order files. Those were made provided: findings and and then that made conclusions Defendant’s motion to “IT IS HEREBY ORDERED that suppress police through obtained their search evidence his is because items seized from residence GRANTED warrant did not authorize a items. supple-
“IT that Defendant’s IS FURTHER ORDERED in con- evidence obtained suppress mental motion them provided nection their review of CD with computer repairman part Ron Wells is GRANTED in in part. DENIED
“IT IS FURTHER ORDERED that Defendant’s motion he Geiger the statements made to Detectives and Andrews is DENIED because the statements were vol- untarily given after Defendant was advised of his Miranda rights.”
On 12, 2005, the state its August filed notice of 138.060(l)(c) under ORS “from the order granting *13 ”3 defendant’s motions to entered on suppress, July 22, 2005 On August 17, defendant filed his under ORS cross-appeal 138.040, reciting:
“The Oregon given State appeal of has notice of its from portions ofthe trial court’s order granting defendant’s 22, motion to suppress, July by Judge entered on Marilyn Litzenberger. E. hereby gives Defendant of notice cross-appeal Judge from said order and Litzenberger’s sup- plemental they order to the extent denied defendant’s dismiss.”4 motion to
The state moved to dismiss its on appeal 4, October 2006. That motion was and granted, defendant filed his opening brief on the cross-appeal 20,2007. The February state had not moved to dismiss the cross-appeal that time.
Two months later, state to moved dismiss cross-appeal, relying on Shaw. The state argued that 138.060(1)(c) provides: ORS may appeal “The state take an from the circuit court to the Court
Appeals from: “(c) prior suppressing An order made trial evidence!.]” to provides, part: ORS 138.040 “Except provided 138.050, may as appeal under ORS to the Appeals judgment Court of or order described under ORS 138.053 in a court, may cross-appeal appeals pursuant circuit and when the state to ORS 138.060(l)(c) (2)(a). following apply upon or The appeal cross-appeal: such or
“(1) appellate may The court review:
“(a) Any proceeding.” decision the court in an intermediate order cross- its dismiss exercise discretion court should judi- appeal on considerations ORS 138.040 based under unnecessary delay, economy and avoidance cial and “inextricably longer no claims were defendant’s because claimed that dismissal the state’s. Defendant linked” to appeal him, and that resolution unfair to would be later. sooner than were needed the substantive issues Judge motion dismiss Brewer ruled on the Chief 22, provided: an order that on June defendant’s the state moved dismiss April “In of the cross- ground that dismissal cross-appeal on the delay. economy promote judicial prevent and appeal would that dismissal of defen- ground is denied on motion expense in unfair cross-appeal would result dant’s the five months of purposeless and render defendant delay would court dismissed state’s the date the between defendant’s the state moved dismiss date appeal.” briefing responded to
Thereafter, the state seeking dis- affirmed, rather than asked that the order be appeal. missal theof OP THE CROSS-APPEAL
JUSTICIABILITY
jus-
cross-appeal
majority
is not
decides that
Supreme
Shaw,
Court
ticiable under ORS 138.040.
examined ORS 138.140
determined:
*14
“By
‘may’
this court
intermediate
providing that
review
cross-appeal
the
of
trial court on
defendant’s
decision
138.060(2)(a), ORS
appeal
from a state
under ORS
138.040
to
court’s
discretion the decision
reserves
this
sound
to
such a review.”
whether
undertake
appellate
an
court
Relying holding, majority that the writes: “We test requirements conclude that Shaw are underlying not satisfied the record defendant’s cross- appeal. appealed principally from a ruling The state regarding scope of the search warrant and whether its language open computer police authorized files body that had been from defendant’s residence. The seized law governs jurispru- that that issue is unrelated to assignments that governs dence defendant’s of error.” App Only analysis Or at Shaw 86-87. after initial majority appeal note that does the state’s notice of also incorporated granting part the court’s order in suppress police viewing motion to evidence derived from the App majority Wells Or the unnecessary CD. 231 89-90. views it as analyze portion regarding of the order light the Wells CD Shaw under in of the state’s dismissal of appeal. respectfully disagree. its Id. I sep- reiterate,
To the order under review decided two adversely suppress arate motions to the state —a motion to pursuant supple- evidence seized to the search warrant and a mental motion to the evidence obtained granted part, suppress- Wells CD. The latter motion was ing evidence of files that had not been viewed Wells. assignment
Defendant’s first of error is that the trial granting supplemental erred court in not motion to dis- entirety. in its is, miss That defendant contends on privacy right that he retained stored data on the CD, Wells whether or not some that data had been argues police accessed Defendant Wells. that the use manipulate mechanical means that data a search was required Oregon warrant under Article Constitution. legal presented by issues defendant’s first
assignment any pri- of error —whether defendant retained rights vacy in the Wells CD data whether the examination of that was a information search —are the same
98 determining the legal state’s arise that would issues supplemental motion appeal the to order on of the court’s the suppress. below, forth conclude, I as set would CD, of the Wells contents a warrant to examine needed without part party regard to a third had examined of whether merits of defendant’s Had the court reached the contents. its first assignment conclusion, error, of reached that same and necessarily part holding validate the of court’s would its parts of defen- to the state. Those order that was adverse appeal appeal from the and state’s abandoned dant’s only “inextricably part are of the order not same court’s they exactly Shaw, arise linked,” in the words of also exactly present legal the same issues. same facts linkage necessary lost under Shaw is not when previ- appeal. Atkinson, In State we the state abandons its v. ously held: expressly 138.040 authorizes a defendant cross-
“ORS cross-appeal and once he has filed his notice of appeal, permitted, jurisdiction. time this court acquires within the may dismissing jurisdiction by oust its The state appeal.” (1983). App 517, P2d 343
64 Or n “inextricably if Even one were to conclude that under met state linked” test Shaw is not when the withdraws compare, appeal appellate and there its are no contentions longer dispositive, and that Atkinson is no there are substan- discretion of tial reasons exercise our to allow continuation appeal The Shaw under ORS 138.040. court “inextricably “ordinary linked” test states the as one of practice” majority Shaw, of the As the court. at 618. “ordinary practice” notes, is derived from the interests of appellate promotion “judicial economy an court in the at avoiding appellate delay level” “the brought App being trial.” 231 Or 85-86. may policy begin- at the
Whatever those interests be ning appellate they longer play process, an are in by no at the process. major- end of that The dismissal years ity filing cross-appeal, four after the comes briefing, year after after the and one oral months close argument When, here, has briefed case. as case been judi- argued opinion works, and an is in the there is little economy delay by dismissing cial to be had or to be avoided *16 the case.
Beyond squandering already judicial of invested suggest resources, there other that are considerations that “ordinary practice” guide our not the exercise of discretion under in First, ORS 138.040 this case. the state con- invited appeal by seeking initially of tinuation defendant’s to dismiss only appeal. its The state moved to dismiss defendant’s appeal only filing open- later, months after the of defendant’s ing Having appellate journey, brief. induced the and followed path, ought champion defendant in its the state not to can- trip. cellation of the justice delayed justice
Second, is denied. This case presents questions impression application of first on of electronically 9, Article I, section to stored If information. not questions require now, resolved those will resolution this proceeds court this it in case if to defendant’s conviction on appeal. the basis of the evidence at issue and to second importantly, ruling way More an authoritative on the that applies electronically Article section 9, stored informa- great parties tion at this time would be of benefit any Having sought the trial court in trial of this case. insight years, postpone for four it is unfair to defendant to consideration of the issue to a later time. largely
Based reasons, this court denied the cross-appeal years ago. state’s motion to dismiss the over two Judge Chief Brewer’s June order reasoned that cross-appeal of “dismissal defendant’s would result in unfair expense purposeless to the defendant and would render delay five of months the date between the court dismissed appeal state’s and the date the state moved to defen- dismiss appeal.” dant’s range
Our earlier decision was within the of discre- given tion to the court under ORS for 138.040 the reasons policy state I above. do not believe it to be sound for the court prior merely now to revisit its of exercise discretion to exer- differently. promotes efficiency cise that discretion It better appeals respect an earlier discre- in tionary of the administration appeal that decision was an unless made in decision range is the court. That allowed to discretion outside here. not the case assign- first raised defendant’s
Because issues “inextricably the facts and law are linked” to ment error supplemental appeal by the state of involved suppress, consideration of cross- and because motion to judicial efficiency, appeal promotes policies of avoid- better delay, under ORS and fairness ance of further proceed merits of that to consider the 138.040, I would assignment error. apply relationship logic
That same does subject parts of the order that were the between the remaining assignments state’s assignments error concern dif- fourth fifth error. The (an denying defendant’s of the trial court order ferent orders *17 allowing and an an amend- demurrer to the indictment order indictment) relationship that bear no to the facts ment to the appeal. legal or in the state’s Defendant’s sec- issues involved (insufficient support assignment of the ond error evidence warrant) assignment (exploitation error and third warrant) unsupported sufficient can be a search poten- regard issues without to resolution of resolved appeal. agree tially reasons, I in the state’s For those raised majority with the that defendant’s issues should be dismissed under ORS 138.040. THE POLICE
LAWFULNESS OF EXAMINATION THE WELLS CD OF assignment in his or Defendant asserts first error denying sup- partially erred motion that the court police press evidence of the results of view Wells granted court earlier, CD. As noted the trial motion inspection police suppress evidence of the of the Wells CD “to [the detectives’] scope extent that search exceeded private citizen search conducted Wells.” The trial ruling testimony and the detec- court’s limited the of Wells testimony concerning computer the CD tives about police images that observed in common. Wells and argues deny- Defendant that the trial court erred in ing his motion to all the evidence obtained police they provided by when viewed the files on the CD protected privacy Wells because defendant had a interest in argues all of that, the files. Defendant under both state and guarantees against federal constitutional unreasonable police required seizures, searches and were to obtain a opening viewing warrant before and the files on the CD responds police handed over Wells. The state that the were entitled to examine all of the files on the CD because longer protected privacy defendant no had a interest in the argues any pri- data. The state that defendant abandoned vacy computer previously interest in the files because he had given significant possibility the files to Wells with a of their inspection by Wells. The state also asserts that Wells con- property, verted the information into his CD, own police property. consented to the examination of his own I protected would conclude that defendant had a I, Article sec- tion in the files that was not extinguished by viewing by the unauthorized Wells and partial would reverse the denial of defendant’s motion to suppress.5 guarantees right peo
Article
“the
theof
ple
persons,
papers,
to be secure in their
houses,
effects,
against
search,
unreasonable
or seizure.”6 The constitutional
provision protects
possessory
both
interests.
(1986).
Owens,
State v.
196, 206,
that it contained. the con- state examined when the occurred sonable the CD. tents of is unreason- a warrant without conducted
A search
exception to the warrant
per
an
it falls within
unless
se
able
viewing theof
requirement.
for the
was obtained
No warrant
appli-
identify an
has failed to
the state
CD, and
files on the
only
requirement.
Thus,
exception to the warrant
cable
argument
justify the warrantless
to the state
available
viewing did
viewing
that the
the CD was
the data on
meaning
I,
Article
sec-
a “search” within
constitute
not
tion 9.
9, “when a
I, section
under Article
occurs
A “search”
Owens,
privacy
person’s
the state.”
are invaded
interests
App
“A
at 287.
Heckathorne, 218 Or
206;
302 Or at
** *
particular forms
in freedom from
is an interest
interest
Campbell,
P2d
scrutiny.”
157, 170, 759
306 Or
v.
State
(1988).
objective
using an
determined
That interest is
1040
sig-
government’s
“would
conduct
test that asks whether
nificantly impair
in freedom from
interest
an individual’s
/Digby,
privacy.”
[or her]
scrutiny,
307
State v.Dixson
i.e., his
(1988).
inquiries
Unlike in related
P2d 1015
195, 211, 766
Or
United States
Amendment
under
the Fourth
expec
person’s
subjective
reasonable
Constitution, a
test —a
protected inter
to determine
not used
tation of
—is
35, 43,
Sanders, 343 Or
State v.
I,
Article
section 9.
est under
(2007).7
protected
privacy Thus, 163 P3d
I,
explained
Article
Oregon Supreme
the difference between
Court has
9,
jurisprudence as follows:
Fourth Amendment
section
way
9,
analyzed
than the
in a different
Article
“This court has
Amendment,
individ
analysis
focuses on an
which
under the Fourth
federal
noted,
subjective
privacy.
‘if
expectations
As this court has
ual’s reasonable
government
privacy rights,
could
“the
expectations
were determinative
privacy merely
expectations
announc
person’s subjective
diminish each
* * *
being placed
half-hourly
all forthwith
ing
that we were
on television
’
312,
Tanner, 304 Or
comprehensive
State v.
electronic surveillance.”
under
(1987)
Amsterdam, Perspectives
(quoting
on the Fourth
7,n
Amendment,
or not a
L
Whether
58 Minn Rev
analysis
observation, therefore,
to an
is not relevant
expects
free from
son
to be
pri
‘Rights
9 are defined
Oregon
under section
Constitution:
under the
right
expect.’
vacy
Id.”
one has a
(1993).
Wacker,
P2d 1029
425 n
v.
State
*19
right,
expecta-
under the state constitution is “one of
not of
Tanner,
7,
tion.” State v.
304 Or
321 n
That or “interest in freedom is legal behavior, “determined trespass social and norms of such as against eavesdropping.” laws and conventions Campbell, protected 170. The interest is scrutiny general, because, “not one of freedom from in if any thereby scrutiny infringe case,
that were the form of would a privacy interest and be a A considered search. court example, police engages held, has never for that a officer by making public a search unaided observations from a place, and an individual therefore cannot be said to have a protected constitutionally scrutiny.” interest in freedom from such Id. question
Thus, the becomes whether defendant had scrutiny” an “interest in freedom from of the data on stored prior require the Wells CD so as search warrant inspection of the data on that CD. Under the facts of this question depends case, the resolution of that on the answers (1) following inquiries: pro- whether defendant had a privacy tected interest under Article in the data personal computer, stored the hard drive of his (2) pro- whether defendant abandoned or diminished that delivering tected interest the hard drive to Wells so that (3) manipulate Wells could data; whether defendant lost any protected privacy examination interest as a result of (4) of some of the files Wells; and whether defendant privacy copied retained that interest when the data was medium. transferred to a different I would conclude that protected privacy defendant did not abandon lose his inter- est in the data stored on the hard drive of his that the interest continued after the data was trans- light ferred the Wells CD. conclusions, of those a war- required any inspection rant was before contents of police. CD the question
First, there is little defendant had protected the data stored on the hard personal computer. personal computer drive of his A often its details of users’ the most intimate records of contains containing a file cabinet equivalent It is the virtual lives. entries, letters, photo- calendars, records, diary financial information. Professor albums, other private graph S. Kerr observed: Orin daily life greater role in playing an ever
“[C]omputers are 1980s, In the it. recording growing proportion and are glorified typewriters. primarily used as computers were services, jukeboxes, they playgrounds, *20 Today postal are theaters, daily planners, shopping services, movie dating secretaries, diaries, more. As malls, personal virtual lives, aspects our in more computers become involved Each new increasingly diverse information. they record aspect our lives another application means software * ** computers. As our com- recorded our monitored and puters may data, perform preserve more functions and more we a in a eventually approach world which considerable in perpetuity of our is recorded and stored in chunk lives up inside our computers. may These end stored our details later way in that can be reconstructed machines accuracy.” analyst remarkable forensic with Digital World, in a Kerr, Searches and Seizures Orin S. (2005). 531, L Rev Harv law, crime or knowingly
Under
it is a
to
use
Oregon
authorization.8
computer
access data stored within
without
to
programs
protect
use software
regularly
users
Computer
operat-
into
computer’s
unauthorized intrusions
against
of confiden-
entry
and stored data and
system
require
ing
to
the machine.
or other identification
use
passwords
tial
behavior,”
the informa-
legal
Under our “social and
norms
is
as confi-
computers
regarded
stored within personal
tion
had an “interest
in freedom
private.
dential and
Defendant
personal computer.
the data stored in his
scrutiny”
Second,
privacy
did not abandon his
to
the infor
manipulate
in
data
Wells
rights
engaging
Purvis,
mation. See State v.
404, 410-11,
detained and was thus late in his rent. The pack defendant’s mother instructed McComas to the defen- belongings put storage. dant’s to and them in In the course efforts, those McComas discovered evidence sexual abuse and an by the sheriffs office called McComas the defendant. police in it to and sent the evidence seized undersheriff suppression Oregon. that evidence Id. at 376-77. appeal. that the concluded We affirmed the trial court was property instead but had not abandoned defendant privacy Id. at property in his effects. interest retained a given McComas had not the defendant Moreover, 377. authority investigate property evi- for examine the to noted: of a crime. We dence whatever was reason- authority to do
“McComas had It effects. up and store defendant’s ably necessary gather examining extend to authority did not clear that is and did not authorize ledgers photographs of defendant’s sheriffs] [the McComas to consent in the effects privacy Defendant retained effects. McComas to store.” that he entrusted (citations omitted). Id. at 378
By logic, or did not abandon the same computer privacy hard in the data on his interests lessen entrusting computer the loss of to Wells. Nor was drive legal necessary casualty rights privacy rela- those tionship found The trial court defendant and Wells. between privacy interest in the did not abandon his that “defendant storage computer and the other electronic contents of his shop” computer repair he “asked because media he left at that his from the hard drive on his old files transferred be a new that he could load the files onto to disks so person “specifically requested computer.” that the trans- He * * * image ferring the files not look at files because pictures private i.e., information, ofhis wife files contained the nude.” As I understand requested facts, the services visually inspect require the con- that he from Wells did any image file. tent of relinquish right person reveal-
A
can
way
ing
in such a
as to make the conduct
conduct or items
public
generally
or accessible
items
large.
observable
(1983) (an
57, 61,
Third, defendant did not lose
interest in
computer image
files
because
files were examined
analogous
Wells. The court reached that conclusion under
App
facts
Luman,
in State v.
617,
372,
220 Or
188 P3d
rev
(2008).
381
allowed,
Luman,
345 Or
the defendant video-
taped
using
place
women
restroom at his
of business. He
employees
instructed his
use the
to
television attached to
videotape
images.
a video recorder that held a
with those
employees
Two
turned on the television and watched videotape
employees gave
videotape
nonetheless. The
tapes
they
police.
and other
discovered the
Police offi-
videotapes
cers viewed the contents of all
without
first
authority
The state
not contend
does
that Wells had actual
to consent to the
police.
search of
“[W]hen
the CD
the state relies on the consent of a third
party
justify
Constitution,
Oregon
under
Article
party
authority
Ready,
App 149,
third
must have actual
to consent.” State v.
148 Or
(citations
152-53,
(1997)
omitted).
den,
939 P2d
rev
sented police any the video- obtained seizure. the lawfulness tapes not lawfully. had that the defendant concluded We videotapes. 622. Id. at in the interest abandoned by viewing “simply whether, the video- was Thus, the issue police] [the obtaining unlaw- tapes fully warrant, a first without videotapes, of defendant’s in violation ‘searched’ particu- rights larly, at 623. More I, 9.” Id. under Article section [the] defendant’s the fact that was “whether the issue turning tape portion it employees before a had viewed [the] police con- defendant’s eliminated somehow over to stitutionally protected privacy Id. at in its contents.” 624. We concluded party knowledge has private that a third
“the mere fact claims a something in which a defendant the contents conveys the informa- party if that privacy interest —even defendant no mean that a tion to —does gov- intrusive forms of right ‘the to be free from longer has 195, 208, Dixson/Digby, 307 Or scrutiny.’ State v. ernment (1988). counte- does not Article 766 P2d such a result.” nance at 626.
Id. in this case. The fact conclusion results
That same hard of defendant’s some of the content that Wells observed change personal nature ofthat information drive does not gov- rights safeguard information from or defendant’s containing scrutiny. was, defendant’s files The CD ernmental requirement a to obtain effect, a closed container. examining opening the contents of before search warrant just had the state not excused because the container was way that the contents, in much the same of its some evidence videotape container that did not a “closed in Luman was pri- defendant retained and in which announce its contents possession vacy it in the lawful interest when was police.”Id. at 628.
Fourth, in the informa- privacy rights tion stored in his personal computer is retained even if the information is and stored on a medium copied owned someone It else. makes little sense practical distinguish between newly created files and copied files assessing privacy rights in those files. As Professor Kerr has explained:
“All computer copy. data is a Computer hard drives work generating copies; accessing a file on hard drive actually generates copy of the file to be sent to the com- puter’s processor. central More broadly, computers work copying recopying information from one section of the machine to another. From a technical perspective, it usu- ally makes no sense speak having ‘original’ an set of this, data. Given it would be troublesome and artificial to *24 copies treat originals.” as different from Kerr, 119 Harv L Rev at 564.
Further, it that, is to take helpful note in the context of the Amendment, Fourth the United States Supreme Court has a recognized person’s privacy interest in copies per of sonal information. See Church Scientology Cal. v. United of of States, 9, 13, 113 (1992). 506 US 447, 121 L S Ct Ed 2d 313 Church Scientology Cal., the Court decided that an of of of a district court order requiring delivery of copies of taped attorney-client conversations to the IRS was moot even though the of the copies tapes had already been delivered. Id. at 10-13. The Court reasoned:
“Taxpayers have an obvious possessory their records. When the Government has obtained such materi- als as a result of an summons, unlawful that interest is vio- lated and a court can effectuate relief by ordering the Moreover, Government to return the records. even if only Government retains copies disputed materials, of taxpayer still injury by the Government’s continued suffers possession materials, namely, those to the tax- affront payer’s privacy. A person’s maintaining interest in pri- vacy ‘papers his and importance is effects’ of sufficient merit protection.” constitutional (footnote added). Id. at 13 omitted; emphasis files and stores computer copies
If a makes person Article provided by drive, protection them on a flash information of that scrutiny government against infor- of the merely because dissipate should not form rights logic, the same mation. Under are not lost because hard drive his computer the contents of information are portions are and copied contents device. storage another stored in copied again in electronically rights Nor are person’s is that data lost because information stored personal in a Again, practical another. in a medium owned retained storage from the evolving away norms are sense, our social to retention of hard drives data on personal internet serv- owned “cloud,” in the on servers information can then be generated That information ice providers.10 devices. I sus- personal computing hand-carried accessed as no less con- would that data regard that most citizens pect it was stored on server owned because private fidential else.11 by someone 10“Experts in Internet the term “Web2.0’ to describe shift have coined metaphorically usage consumption participation refer to this virtual cloud,’ applications and store platform interact with Internet as ‘the where users rather than on their own Couillard, hard drives.” David A. data on distant servers Evolving Principles Note, Befogging Applying Fourth Amendment the Cloud: (2009) (foot Computing,
Privacy Expectations 93 Minn L Rev in Cloud omitted). *25 stores other code, many shows, computer photographs, people. slide Similar services exist for result, personal types people a now have data other of data. As of, example, strangers. Seizure for that are stored with that of innumerable messages jeopard- incriminating Google’s a few could email servers to look for privacy ize the of millions.” (9th 989, Testing, Inc., Comprehensive Drug 1005 Cir 579 F3d United States v. 2009). 11As noted in a recent article: computing “Forty-nine percent residents who use cloud services of U.S. very vendors shared their files with law concerned if the cloud
would be * * *by according survey agencies, the Pew Internet to a released enforcement respondents they’d Project. percent be Another 15 said and American Life * * concerned, survey according *. to the somewhat
111 rejected Indeed, case our law has crabbed view phys- protections that ical provision protects I, 9, limits of Article section to the space by person. owned or controlled The constitutional against physical than an
more
interest
trespass,
by
government.
assault, or confinement
Under
person’s right
I,
9,
Article
section “a
free from
be
unreason-
things
places
able searches
in
extends
which the
person
‘privacy
physical
interest,’
has
even
there
when
is no
sensory
person’s
possessions
or
invasion into the
own
or
space.”
Johnson,
319, 336,
State v.
340
131
Or
P3d
cert
(2006).
Campbell,
den,
Our of a the existence private tected in interest information is not deter- storage ownership mined medium for that informa- person Johnson, tion. In the issue was whether a had a protected privacy phone usage interest in records of cell telephone provider. maintained a cellular service recognized clearly cogniza- “[defendant court that the had a * * * telephone ble interest in the content his calls [but privacy] keeping private any not a records * * * respecting telephone usage.” his cellular 340 at Or (emphasis original). protected pri- The existence or of a vacy determined interest was not who owned the servers and other devices on which the information was stored. “Sixty-nine percent of U.S. residents who are online use at least one of six popular services, survey Fifty-six percent respondents cloud survey said. services, percent personal
use photos percent Web mail store online applications Google use online such Photoshop as Documents Adobe Express, according survey. “Among percent computing: respondents the concerns about cloud they’d very photos said be if a concerned vendor used their and other informa- marketing campaigns. percent they’d tion in very Another 68 said be concerned personal if per- the vendor used their information stored in the cloud to deliver percent they’d very sonalized ads to them and 63 said if the be concerned ven- kept they dor their data after tried to delete it.” Gross, Computing May Action, InfoWorld, Grant Sept 12, Cloud Draw Government 2008, http://www.infoworld.com/article/08/09/12/Cloud_computing_may_draw_ (accessed 24,2009). government_action_l.html Sept *26 112 privacy that not to exist in case found
Rather, a
interest was
“generated
usage
and maintained
the
records were
because
* * *
pro-
equipment
provider’s
the
and for
own
from the
(such
purposes
legitimate
separate
own,
business
vider’s
privacy
billing).” By
content
interest in the
contrast,
as
Id.
generated
telephone
the defen-
calls, information
of the
statutory requirements for a
dant, was inferred because
intercept telephonic
Id.
communications.
warrant
way,
that a defen
In
the same
we concluded
much
privacy
informa
interest in subscriber
dant did not have
provider
possession
in
an
service
State v.
in
internet
tion
(2008).
Delp,
App 17, 178
den,
Because of different protected constitutions, state con- under the federal and ests helpful analogous cases is Fourth Amendment sideration ownership well, In area oflaw as but not instructive. that storage privacy of the medium does not determine whether example, Quon in the stored data. For v. exists (9th Operating Co., Inc., F3d Arch Wireless 529 904 Cir 2008), (2009), retig den, the Ninth Circuit held F3d messaging have a reasonable that users of text services messages expectation the content of their text provider’s Quon, stored on their service network. serv- messages provider copies ice by had archived the text received it its server. Id. at 896. The Ninth Circuit concluded that provider may was irrelevant that service have been able messages purposes. access contents of the for its own Rather, at 905. it was relevant that users of serv- Id. expect provider] [the that ice “did not service would monitor messages, messages text less turn their much over the [the users’] parties consent.” Id. at 906.1 would third without right hold, then, I, defendant had a under Article that copied 9, in his files that were and stored on the Wells CD.
Finally, I would conclude that the examina- tion CD was a search under Article section 9.1 do not merely majority case, does, view this as the as one “a where person private acquires third information then delivers police.” App information to Or 88-89 n 5. This revealing private is not a case of a contraband and turning police. acting Wells, evidence over to If *27 opened computer printed own, his had defendant’s files and images gave prints the police, stored in those files and to the analysis police would be different. In case, steps images would to take no uncover the data and make the inspection. police for available would have under- not require justifica- search, taken a their and conduct would no tion under Article I, section 9. gave police
Instead, CD, Wells a container that privacy held data which defendant had a interest. The con- police tents of the CD were examined in order to deter- proof activity. mine their as relevance criminal The evi- sought suppressed images produced dence to be was when governmental agents opened subjected container its scrutiny manipulation. contents, data, to That examination of the contents ofthe Wells CD constituted exposed a I, 9, search under Article section it because those contents, in which defendant interest, retained a governmental review.
Again, analogy to Fourth Amendment case law is (MD helpful. Supp Crist, U. S. v. F 2d 585 Pa 2008), a federal district court a concluded that exam- forensic computer lawfully ination the contents of a obtained a was “search” under the Fourth Crist, Amendment. In government given computer was the defendant’s a party containing third who had discovered folder on it child pornography. government Id. at 577. The then conducted a computer, warrantless forensic examination of the which making copy running included an exact of the hard drive and analysis signature copy.12 a hash value and on that Id. 578- at 79. signature analysis computer A hash value and offiles on a hard drive creates “fingerprint” computer. generated, of each file on the Once can hash values compared suspected porno
be to the hash values of files or known contain child Crist, graphy. Supp 627 F 2d at 578. evidence moved to
The defendant during computer Id. at that examination. his recovered response arguments Among to the defendant’s its 576. government that, under the Fourth motion, contended during exami- the forensic Amendment, no search occurred govern- computer because the of the defendant’s nation mental any they simply agents files, accessed “didn’t at look (internal quotations computer.” omit- marks Id. ted). “By subjecting however, court, concluded: district analysis every file, a hash value the entire — “buddy history, picture, for list’ became available internet search.” constitutes a review. Such examination Government I, under Article sec- I conclusion Id. would come same respect on the examination of data 9, with tion program. through a CD Wells recog- I would conclude that defendant had Thus, per- stored his interest in the information nized gen- computer. information That ORS 164.377. was sonal erated maintained Wells party. Article or third any possessory protects in the CD both interest any privacy in the seizure and from unreasonable Owens, in the from unreasonable search. data embedded CD *28 in does Defendant’s that data 206. copied, change transferred, or if that data was even manipulated, another, so a medium or stored on owned long exposed as not abandoned the information was inspect public. that data was The use ofmechanical means required 9. under Article a search that warrant deny- Consequently, I would hold that trial court erred ing, part, evidence defendant’s motion viewing files on a result of the warrantless obtained as the Wells CD. notes recently As noted the Ninth Circuit: fast, possible cheap networking infor- has made it to store “The advent of locations, intermingled third-party with that of where it is mation at remote primarily many people longer keep example, their email no other users. For provider, computer, personal and instead use a web-based email which their messages along messages from and to millions their with billions of