Lead Opinion
The appeal in this criminal case charging defendant with 40 counts of encouraging child sexual abuse in the second degree, ORS 163.686, was initiated by the state after the trial court allowed in part and denied in part defendant’s motion to suppress evidence. Defendant cross-appeals pursuant to ORS 138.040
The trial court’s order recites that the charges against defendant arose out of the discovery of images of child pornography on defendant’s computer by a computer repair technician. The evidence sought to be suppressed by defendant consisted of his statements and computer images depicting child pornography. In September 2003, defendant took his computer to a repair shop owned by Wells. Defendant asked Wells to repair his computer and to copy files from the hard drive so they could be loaded on defendant’s
After defendant picked up his computer from Wells, Wells reported his discovery to his mother, who works for the Multnomah County Sheriffs Office. A few days later, Wells was contacted by a Multnomah County sheriff deputy who informed him that the report would be referred to the City of Portland Police Bureau. Wells heard nothing further until approximately two months later when he was contacted by Multnomah County Sheriff Deputy Biles. In the interim, Wells had decided to copy defendant’s files that existed on his own computer. He transferred those files to a CD and then deleted them from his own computer.
When Biles contacted Wells, Wells offered to give the CD containing defendant’s computer files to Biles. Biles took the CD and went back to his office, put the CD in his computer, viewed the images, and confirmed that the images depicted child pornography. The investigation was then determined to be within the jurisdiction of the Portland Police Bureau and transferred to that agency.
Andrews, a detective with the Portland Police Bureau, viewed the CD with defendant’s files on it that had been made by Wells. The “gaming” file opened by Wells was determined to contain 287 pornographic images. Andrews also viewed another file entitled “Thumbs 31” belonging to defendant that was on the Wells CD and found more images of child pornography. Andrews then procured a search warrant for the search of defendant’s residence. When the officers executing the search warrant contacted defendant, they had him read a written Miranda warning and defendant signed a consent form agreeing to speak with the officers. During the ensuing interview, defendant admitted that he knew that the images of child pornography existed on his computer but explained that the images had been put there by the person from whom he had bought the computer. While the interview was ongoing, the police seized a number of personal items including computers and computer files from defendant’s residence and subsequently opened or viewed those computer files.
After defendant was charged, he initially moved to suppress the evidence that the police obtained from his computer files at his residence, arguing that the search warrant obtained by the police did not authorize a search of his computers and related electronic storage media. In a supplemental motion to suppress, he argued that the police impermissibly expanded Wells’s private search of defendant’s files by examining a copy of the files provided by Wells without a warrant. In a second supplemental motion, he contended that the initial copying of his computer files by Wells was done at the direction of law enforcement officials. Additionally, defendant filed a motion to controvert contents of the affidavit that the police had filed in support of their request for a search warrant, and he moved to suppress his statements that were made contemporaneously with the search of his residence.
The trial court, in a memorandum opinion and a supplemental memorandum opinion, agreed with defendant’s initial motion to suppress. It reasoned that the language in the warrant did not authorize the police to look at the images on the computers and disks seized from defendant’s residence. According to the trial court, the warrant was supported by probable cause and authorized the search of defendant’s residence for a list of items in the warrant and a seizure of those items but not a subsequent search or viewing of the contents of the seized items. It rejected defendant’s argument that Wells was acting as an agent of the police. The court also granted defendant’s supplemental motion to suppress evidence obtained as a result of the police viewing the file contained on the CD provided to them by Wells but only to the extent that their search exceeded the scope of the private search by Wells. The trial
Pursuant to its rulings, the court entered an order suppressing the evidence that police obtained through the search of items seized from defendant’s residence and granting and denying in part the supplemental motion to suppress evidence that the “police obtained in connection with their review of the CD provided to them by computer repairman Ron Wells.” The order also denied defendant’s second supplemental motion to suppress, defendant’s motion to controvert, and defendant’s motion to suppress the statements that he had made to police. The state appealed. In its notice of appeal, the state stated, “State of Oregon, Plaintiff, hereby gives notice of appeal from the ORDER GRANTING DEFENDANT’S MOTIONS TO SUPPRESS[.]” Four days later, defendant filed a notice of cross-appeal appealing “to the extent [the order] denied portions of defendant’s motion to suppress.” Defendant also cross-appealed from other pretrial orders entered by the trial court. Approximately one year later, the state moved to dismiss its appeal, citing the following reasons:
“After careful evaluation of this appeal, and after consultation with the Multnomah County District Attorney’s Office, the state has concluded that it would be more expeditious to reseize the challenged evidence by means of a search warrant, rather than to pursue this appeal of the trial court’s order suppressing evidence obtained from defendant’s computer.”
Defendant thereafter continued to pursue his cross-appeal, making five assignments of error, three of which pertain to the trial court’s rulings on the motions to suppress: (1) The trial court erred by denying defendant’s motion to suppress the results of Bile’s view of the CD provided by Wells; (2) The search warrant was the product of the prior unlawful search of the CD; and (3) The statements obtained from defendant were the product of an illegal search.
In Shaw, the court identified, for the first time, the circumstances under which appellate courts should elect to exercise their statutory discretion to review a defendant’s cross-appeal under ORS 138.040.
The reasons for that limitation are two-fold, according to the Shaw court. First, a defendant, unlike the state, has a full opportunity to challenge any intermediate adverse trial court ruling if the defendant is convicted. If a defendant is acquitted, then any intermediate rulings become moot. Accordingly, a limitation on the exercise of discretion under ORS 138.040 of a defendant’s cross-appeal promotes judicial economy at the appellate level, thereby negating the possibility of the expenditure of judicial time and resources on issues that will not arise unless the defendant is convicted. Id. at 618.
Second, a state’s pretrial appeal necessarily prolongs the pendency of a criminal proceeding against a defendant and may in some cases result in the defendant remaining in custody during the pendency of the appeal. The consideration of a cross-appeal by this court, along with the state’s appeal, together with the possibility of review by the Supreme Court, only adds to the delay of the defendant being brought to trial. In the Shaw court’s view, those considerations “strongly support ] the view that this court should limit the exercise of its discretion under ORS 138.040 to review a defendant’s challenges to a trial court’s intermediate rulings raised by cross-appeal.” Id. at 618.
In addition to expressing the policies underlying the limitation on the discretion of an appellate court under ORS 138.040, the Shaw court undertook to define the circumstances regarding when that discretion should be exercised:
“In light of the considerations articulated above, we conclude that, in respect [to] a defendant’s cross-appeal, this court’s ordinary practice will be to limit its considerationonly to those assignments of error that are inextricably linked, either factually or legally, to the state’s assignments of error on appeal. Only under those factual circumstances can we reasonably be assured that our review of a defendant’s assignments of error on cross-appeal will not contribute unnecessarily to the delay from a state pretrial appeal under ORS 136.060(2)(a).”
The question then becomes, under Shaw, whether defendant’s assignments of error are inextricably linked, either factually or legally, to the state’s assignments of error to the trial court’s ruling that the search warrant authorized a seizure of defendant’s personal effects but not a search of their contents.
The trial court’s holding pertaining to the scope of authority conferred by the provisions of the search warrant to search defendant’s residence and seize items from there is easily disentangled from the issue of whether Bile’s viewing of the CD made by Wells from Wells’s computer was an unreasonable search within the meaning of Article I, section 9.
Generally, a search occurs when the government invades a protected privacy or possessory interest of the defendant. Privacy interests are commonly circumscribed by the space in which they exist, i.e., the private space of a person. State v. Smith,
It follows from the above discussion that defendant’s assignments of error are not inextricably linked, factually or legally, to the state’s appeal because the factual circumstances and the legal issues that defendant frames are dissimilar to the factual circumstances and the legal issue upon which the state’s appeal was predicated. As a result, under the holding in Shaw, we must decline to exercise our discretion under ORS 138.040 to review any of defendant’s assignments of error on cross-appeal at this time.
The dissent disagrees. The dissent criticizes the majority for not deferring to the Chief Judge’s exercise of discretion when he preliminarily denied the state’s motion to dismiss defendant’s cross-appeal on the basis of the holding in Shaw.
Also, part of the dissent’s disagreement is based on the fact that the state’s notice of appeal incorporated by reference the portion of the court’s order granting defendant’s motion to suppress evidence derived from the police viewing the “Thumbs 31” file, a file that Wells had copied but not viewed. Apparently, that inclusion in the notice of the appeal, in the dissent’s view, ought to change the result under Shaw. We are not persuaded by the dissent’s argument. The state’s motion to dismiss its appeal implies that it no longer relies on any evidence from the “Thumbs 31 file,” and indeed, the trial court’s order concerning that file has the legal effect of being a final order because of the state’s dismissal of its appeal. It is not apparent to us why that result should require consideration of defendant’s cross-appeal regarding Wells’s copying of defendant’s computer records, the subsequent issuance of a search warrant for the search of defendant’s residence based on the information given by
The dissent also contends that given the delay in the prosecution of the cross-appeal, “postponing final resolution of the important search and seizure issues in this case is unfair to defendant and squanders the significant resources of this court already expended on this case.”
We conclude, based on the pronouncement in Shaw, that to refuse to dismiss defendant’s cross-appeal would fall outside the boundaries of the discretion conferred by ORS 138.040 on this court.
Cross-appeal dismissed; case remanded for further proceedings.
Notes
ORS 138.040 provides, in part:
“Except as provided under ORS 138.050, the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(l)(c) or (2)(a). The following apply upon such appeal or cross-appeal:
“(1) The appellate court may review:
“(a) Any decision of the court in an intermediate order or proceeding.”
We note that given the holding in Shaw, our decision in State v. Atkinson,
Defendant’s other assignments of error are derivative of his first assignment.
Defendant does not appear to contend that his privacy was invaded by a form of electronic surveillance such as occurred in Campbell and Meredith.
Properly framed, the issue raised by defendant’s cross-appeal is whether a “search” occurs when a third person acquires private information and then delivers that information to the police. See, e.g., Walker v. Penner,
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s dismissal of defendant’s cross-appeal. The issue presented is whether this court should exercise its discretion to consider defendant’s cross-appeal under ORS 138.040. The rule that guides the exercise of that discretion, under State v. Shaw,
The majority avoids reaching that conclusion by focusing the Shaw analysis on the ruling from which the state “principally” appealed. See
The order under review, however, 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 from that part of the order in applying Shaw. Defendant assigns error to the trial court’s denial of its motion to suppress other evidence seized as part of the police review of the Wells CD. Resolution of that assignment of error involves the same motion to suppress, trial court order, evidence, and legal analysis as would be involved in determining the equivalent part of the state’s appeal. The parties’ respective contentions about the evidence on the Wells CD were “inextricably linked.”
Moreover, the issue of the court’s exercise of its discretion in this case under ORS 138.040 does not arise in the course of the “ordinary practice” of this court. The dismissal of defendant’s cross-appeal at this
Finally, it should not be the “ordinary practice” of this court to revisit discretionary decisions made by the Chief Judge or a different panel of the court unless the prior exercise of discretion was beyond the decision-maker’s authority. The state’s motion to dismiss the cross-appeal on the basis of Shaw was denied by an order by Chief Judge Brewer on June 22, 2007. The order announced reasons why the court was exercising its discretion under ORS 138.040 to deny the motion to dismiss. Perhaps the majority would exercise that discretion differently. But that difference should not justify reversal of a prior decision of this court on which the parties have relied in briefing and arguing the case.
Thus, I would conclude that the majority errs in dismissing defendant’s cross-appeal for lack of jurisdiction under ORS 138.040. In my view, the court should decide the appeal and reverse the part of the trial court order that denied defendant’s motion to suppress evidence obtained from the Wells CD. My reasons are explained below, following a restated history of the case.
THE FACTS
The charges against defendant arise out of the discovery of child pornography on his personal computer by a computer repair technician.
Two months later, Detective Biles interviewed Wells at the repair shop. In the meantime, and on his own volition, Wells copied the files containing the offensive images to a CD and then erased the files from his own computer. Wells gave the CD to Biles. Biles then viewed the images on the CD on his office computer and confirmed that they contained child pornography.
The case was assigned to Detective Andrews. Biles gave Andrews the CD, who then opened and viewed the file identified by Wells as the “Sierra” file and determined that it contained 287 pornographic images. In addition, Andrews opened another file named “Thumbs 31” and found more images, for a total of approximately 800 images on the CD. Andrews interviewed Wells who told her that he believed there were 250 to 300 images of child pornography on defendant’s computer, describing some pictures in detail to the detective, including the ages of the
Andrews obtained a search warrant and executed it at defendant’s residence. Detectives read the search warrant to defendant and told him that they wanted to ask him some questions. Before defendant was questioned, however, he read aloud and signed a written Miranda warning and consent form and indicated his understanding of the warning. Despite being told he did not have to talk to the detectives, defendant did so voluntarily.
Defendant was indicted on 40 counts of encouraging child sexual abuse in the second degree, ORS 163.686. Before trial, defendant moved to suppress evidence that he contended was obtained unlawfully by the police. Defendant moved to suppress the evidence obtained from the computers seized during execution of the search warrant. Relying on Article I, section 9, of the Oregon Constitution, he contended that the warrant did not authorize the search of the contents of the computers, only their seizure, and that the warrant was otherwise overbroad and unsupported in fact. Defendant separately moved to suppress evidence obtained from the police examination of the Wells CD without a search warrant. Defendant finally moved to suppress evidence of his statements to the police during the execution of the search warrant.
The trial court partially granted the motions to suppress. The court allowed the motion to suppress evidence seized under the search warrant because the warrant only allowed seizure of the computers and not a separate search of those computers. The motion to suppress evidence of defendant’s statements to police was denied. The court partially allowed and partially denied the motion to suppress evidence obtained from the Wells CD. It concluded that defendant lost privacy rights in the computer files that had been viewed by Wells, but retained those rights in the other, unseen computer files. Those rulings were made in a July 22,2005, order that made findings and conclusions and then provided:
“IT IS HEREBY ORDERED that Defendant’s motion to suppress evidence police obtained through their search of items seized from his residence is GRANTED because the warrant did not authorize a search of those items.
“IT IS FURTHER ORDERED that Defendant’s supplemental motion to suppress evidence police obtained in connection with their review of the CD provided to them by computer repairman Ron Wells is GRANTED in part and DENIED in part.
“IT IS FURTHER ORDERED that Defendant’s motion to suppress the statements he made to Detectives Geiger and Andrews is DENIED because the statements were voluntarily given after Defendant was advised of his Miranda rights.”
On August 12, 2005, the state filed its notice of appeal under ORS 138.060(l)(c) “from the order granting defendant’s motions to suppress, entered on July 22, 2005 ”
“The State of Oregon has given notice of its appeal from those portions of the trial court’s order granting defendant’s motion to suppress, entered on July 22, 2005 by Judge Marilyn E. Litzenberger. Defendant hereby gives notice of cross-appeal from said order and Judge Litzenberger’s supplemental order to the extent they denied defendant’s motion to dismiss.”4
The state moved to dismiss its appeal on October 4, 2006. That motion was granted,
Two months later, the state moved to dismiss the cross-appeal, relying on Shaw. The state argued that the court should exercise its discretion to dismiss the cross-appeal under ORS 138.040 based on considerations of judicial economy and avoidance of unnecessary delay, and because defendant’s claims were no longer “inextricably linked” to the state’s. Defendant claimed that a dismissal of the appeal would be unfair to him, and that a resolution of the substantive issues were needed sooner than later.
Chief Judge Brewer ruled on the motion to dismiss on June 22, 2007, in an order that provided:
“In April 2007, the state moved to dismiss defendant’s cross-appeal on the ground that dismissal of the cross-appeal would promote judicial economy and prevent delay. The motion is denied on the ground that dismissal of defendant’s cross-appeal would result in unfair expense to the defendant and would render purposeless the five months of delay between the date the court dismissed the state’s appeal and the date the state moved to dismiss defendant’s appeal.”
Thereafter, the state responded to defendant’s briefing and asked that the order be affirmed, rather than seeking dismissal of the appeal.
JUSTICIABILITY OP THE CROSS-APPEAL
The majority decides that the cross-appeal is not justiciable under ORS 138.040. In Shaw, the Supreme Court examined ORS 138.140 and determined:
“By providing that this court ‘may’ review any intermediate decision of the trial court on a defendant’s cross-appeal from a state appeal under ORS 138.060(2)(a), ORS 138.040 reserves to this court’s sound discretion the decision whether to undertake such a review.”
Relying on that holding, the majority writes:
“We conclude that the requirements of the Shaw test are not satisfied by the record underlying defendant’s cross-appeal. The state appealed principally from a ruling regarding the scope of the search warrant and whether its language authorized the police to open the computer files that had been seized from defendant’s residence. The body of law that governs that issue is unrelated to the jurisprudence that governs defendant’s assignments of error.”
To reiterate, the order under review decided two separate motions adversely to the state — a motion to suppress evidence seized pursuant to the search warrant and a supplemental motion to suppress the evidence obtained from the Wells CD. The latter motion was granted in part, suppressing evidence of computer files that had not been viewed by Wells.
Defendant’s first assignment of error is that the trial court erred in not granting the supplemental motion to dismiss in its entirety. That is, defendant contends on appeal that he retained a privacy right in the data
The legal issues presented by defendant’s first assignment of error — whether defendant retained any privacy rights in the Wells CD data and whether the police examination of that information was a search — are the same legal issues that would arise in determining the state’s appeal of the court’s order on the supplemental motion to suppress. I would conclude, as set forth below, that the police needed a warrant to examine the contents of the Wells CD, without regard to whether a third party had examined part of its contents. Had the court reached the merits of defendant’s first assignment of error, and reached that same conclusion, its holding would necessarily validate the part of the court’s order that was adverse to the state. Those parts of defendant’s appeal and the state’s abandoned appeal from the same part of the court’s order are not only “inextricably linked,” in the words of Shaw, they also arise from exactly the same facts and present exactly the same legal issues.
The necessary linkage under Shaw is not lost when the state abandons its appeal. In State v. Atkinson, we previously held:
“ORS 138.040 expressly authorizes a defendant to cross-appeal, and once he has filed his notice of cross-appeal within the time permitted, this court acquires jurisdiction. The state may not oust jurisdiction by dismissing its appeal.”
Even if one were to conclude that the “inextricably linked” test under Shaw is not met when the state withdraws its appeal and there are no appellate contentions to compare, and that Atkinson is no longer dispositive, there are substantial reasons to exercise our discretion to allow continuation of defendant’s appeal under ORS 138.040. The Shaw court states the “inextricably linked” test as one of the “ordinary practice” of the court. Shaw,
Whatever those policy interests may be at the beginning of an appellate process, they are no longer in play at the end of that process. The dismissal of the appeal by the majority comes four years after the filing of the cross-appeal, 16 months after the close of briefing, and one year after oral argument of the case. When, as here, a case has been briefed and argued and an opinion is in the works, there is little judicial economy to be had or delay to be avoided by dismissing the case.
Beyond the squandering of already invested judicial resources, there are other considerations that suggest that our “ordinary practice” not guide the exercise of discretion under ORS 138.040 in this case. First, the state invited continuation of defendant’s appeal by initially seeking to dismiss only its appeal. The state moved to dismiss defendant’s appeal months later, only after the filing of defendant’s opening brief. Having induced the appellate journey, and followed defendant in its path, the state ought not to champion cancellation of the trip.
Second, justice delayed is justice denied. This case presents questions of first impression on the application of Article I, section 9, to electronically stored information. If not resolved now, those questions will require resolution by this court in this case if it proceeds to defendant’s conviction on the basis of the evidence at issue and to a second appeal. More importantly, an authoritative ruling on the way that Article I, section 9, applies to electronically stored information at this time would be of great benefit to the parties and the trial court in any trial of this case. Having sought that insight for four years, it is unfair to defendant to postpone consideration of the issue to a later time.
Based largely on those reasons, this court denied the state’s motion to dismiss the cross-appeal over two years ago. Chief Judge Brewer’s June 22, 2007, order reasoned that “dismissal of defendant’s cross-appeal
Our earlier decision was within the range of discretion given to the court under ORS 138.040 for the reasons state above. I do not believe it to be sound policy for the court now to revisit its prior exercise of discretion merely to exercise that discretion differently. It better promotes efficiency in the administration of appeals to respect an earlier discretionary decision made in an appeal unless that decision was outside the range of discretion allowed to the court. That is not the case here.
Because the issues raised in defendant’s first assignment of error are “inextricably linked” to the facts and law involved in any appeal by the state of the supplemental motion to suppress, and because consideration of that cross-appeal better promotes policies of judicial efficiency, avoidance of further delay, and fairness to defendant under ORS 138.040, I would proceed to consider the merits of that assignment of error.
That same logic does not apply to the relationship between the parts of the order that were the subject of the state’s appeal and defendant’s remaining assignments of error. The fourth and fifth assignments of error concern different orders of the trial court (an order denying defendant’s demurrer to the indictment and an order allowing an amendment to the indictment) that bear no relationship to the facts or legal issues involved in the state’s appeal. Defendant’s second assignment of error (insufficient evidence to support the search warrant) and third assignment of error (exploitation of a search unsupported by sufficient warrant) can be resolved without regard to resolution of any issues potentially raised in the state’s appeal. For those reasons, I agree with the majority that defendant’s appeal on those issues should be dismissed under ORS 138.040.
LAWFULNESS OF THE POLICE EXAMINATION OF THE WELLS CD
Defendant asserts in his first assignment or error that the court erred in partially denying the motion to suppress evidence of the results of the police view of the Wells CD. As noted earlier, the trial court granted the motion to suppress evidence of the police inspection of the Wells CD “to the extent that [the detectives’] search exceeded the scope of the private citizen search conducted by Wells.” The trial court’s ruling limited the testimony of Wells and the detectives about the CD to testimony concerning the computer images that Wells and the police observed in common.
Defendant argues that the trial court erred in denying his motion to suppress all the evidence obtained by the police when they viewed the files on the CD provided by Wells because defendant had a protected privacy interest in all of the files. Defendant argues that, under both state and federal constitutional guarantees against unreasonable searches and seizures, the police were required to obtain a warrant before opening and viewing the files on the CD handed over by Wells. The state responds that the police were entitled to examine all of the files on the CD because defendant no longer had a protected privacy interest in the data. The state argues that defendant abandoned any privacy interest in the computer files because he had previously given the files to Wells with a significant possibility of their inspection by Wells. The state also asserts that Wells converted the information into his own property, the CD, and consented to the police examination of his own property. I would conclude that defendant had a protected Article I, section 9, privacy interest in the computer files that was not extinguished by the unauthorized viewing by Wells and would reverse the partial denial of defendant’s motion to
Article I, section 9, guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”
A search conducted without a warrant is unreasonable per se unless it falls within an exception to the warrant requirement. No warrant was obtained for the viewing of the files on the CD, and the state has failed to identify an applicable exception to the warrant requirement. Thus, the only argument available to the state to justify the warrantless viewing of the data on the CD was that the viewing did not constitute a “search” within the meaning of Article I, section 9.
A “search” occurs under Article I, section 9, “when a person’s privacy interests are invaded by the state.” Owens,
That right or “interest in freedom from scrutiny” is “determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping.” Campbell,
“not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. A court has never held, for example, that a police officer engages in a search by making unaided observations from a public place, and an individual therefore cannot be said to have a constitutionally protected interest in freedom from such scrutiny.”
Id.
Thus, the question becomes whether defendant had an “interest in freedom from
First, there is little question that defendant had a protected privacy interest in the data stored on the hard drive of his personal computer. A personal computer often contains records of the most intimate details of its users’ lives. It is the virtual equivalent of a file cabinet containing calendars, financial records, letters, diary entries, photograph albums, and other private information. Professor Orin S. Kerr observed:
“[C]omputers are playing an ever greater role in daily life and are recording a growing proportion of it. In the 1980s, computers were used primarily as glorified typewriters. Today they are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more. As computers become involved in more aspects of our lives, they record increasingly diverse information. Each new software application means another aspect of our lives monitored and recorded by our computers. * * * As our computers perform more functions and preserve more data, we may eventually approach a world in which a considerable chunk of our lives is recorded and stored in perpetuity in our computers. These details may end up stored inside our machines in a way that can be reconstructed later by a forensic analyst with remarkable accuracy.”
Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv L Rev 531, 569 (2005).
Under Oregon law, it is a crime to knowingly use or access data stored within a computer without authorization.
Second, defendant did not abandon his privacy rights in that data by engaging Wells to manipulate the information. See State v. Purvis,
“Here, the legal relationship between defendants and the sanitation company effectively controls the question whether defendants retained a constitutionally protected privacy interest in the garbage. See State v. Cook,332 Or 601 , 607-08,34 P3d 156 (2001) (recognizing that proposition). To be sure, the privacy that Article I, section 9, protects is not necessarily coextensive with property law. Rather, the degree to which property law informs questions of privacy varies with the context in which the challenged action occurs. In this context, the court has recognized that, when a person gives up all rights to control the disposition of property, that person also gives up his or her privacy interest in the property in the same way that he or she would if the property had been abandoned.”
Howard/Dawson,
The legal relationship between a defendant and a third party in possession of the defendant’s property was relevant in assessing the nature of privacy rights in State v. Britten,
“McComas had the authority to do whatever was reasonably necessary to gather up and store defendant’s effects. It is clear that that authority did not extend to examining defendant’s ledgers and photographs and did not authorize McComas to consent to [the sheriffs] search of defendant’s effects. Defendant retained a privacy interest in the effects that he entrusted McComas to store.”
Id. at 378 (citations omitted).
By the same logic, defendant did not abandon or lessen his privacy interests in the data on the computer hard drive by entrusting the computer to Wells. Nor was the loss of those privacy rights a necessary casualty of the legal relationship between defendant and Wells. The trial court found that “defendant did not abandon his privacy interest in the contents of his computer and the other electronic storage media he left at the computer repair shop” because he “asked that his files be transferred from the hard drive on his old computer to disks so that he could load the files onto a new computer.” He “specifically requested that the person transferring the files not look at image files because * * * those files contained private information, i.e., pictures of his wife in the nude.” As I understand the facts, the services requested from Wells did not require that he visually inspect the content of any image file.
A person can relinquish a right to privacy by revealing conduct or items in such a way as to make the conduct or items generally observable or accessible by the public at large. State v. Louis,
Third, defendant did not lose any privacy interest in the computer image files because the files were examined by Wells. The court reached that conclusion under analogous facts in State v. Luman,
In Luman, as here, we noted that the question presented concerned the police search of the videotape and not the lawfulness of any seizure. The police obtained the videotapes lawfully. We concluded that the defendant had not abandoned any privacy interest in the videotapes. Id. at 622. Thus, the issue was “simply whether, by viewing the videotapes without first obtaining a warrant, [the police] unlawfully ‘searched’ the videotapes, in violation of defendant’s rights under Article I, section 9.” Id. at 623. More particularly, the issue was “whether the fact that [the] defendant’s employees had viewed a portion of the tape before turning it over to the police somehow eliminated [the] defendant’s constitutionally protected privacy interest in its contents.” Id. at 624. We concluded that
“the mere fact that a private third party has knowledge of the contents of something in which a defendant claims a privacy interest — even if that party conveys the information to the police — does not mean that a defendant no longer has ‘the right to be free from intrusive forms of government scrutiny.’ State v. Dixson/Digby,307 Or 195 , 208,766 P2d 1015 (1988). Article I, section 9, does not countenance such a result.”
Id. at 626.
That same conclusion results in this case. The fact that Wells observed some of the content of defendant’s hard drive does not change the personal nature of that information or defendant’s rights to safeguard that information from governmental scrutiny. The CD containing defendant’s files was, in effect, a closed container. The requirement to obtain a search warrant before opening and examining the contents of the container was not excused just because the state had some evidence of its contents, in much the same way that the videotape in Luman was a “closed container that did not announce its contents and in which defendant retained a
Fourth, defendant’s privacy rights in the information stored in his personal computer is retained even if the information is copied and stored on a medium owned by someone else. It makes little practical sense to distinguish between newly created computer files and copied files in assessing privacy rights in those files. As Professor Kerr has explained:
“All computer data is a copy. Computer hard drives work by generating copies; accessing a file on a hard drive actually generates a copy of the file to be sent to the computer’s central processor. More broadly, computers work by copying and recopying information from one section of the machine to another. From a technical perspective, it usually makes no sense to speak of having an ‘original’ set of data. Given this, it would be troublesome and artificial to treat copies as different from originals.”
Kerr, 119 Harv L Rev at 564.
Further, it is helpful to take note that, in the context of the Fourth Amendment, the United States Supreme Court has recognized a person’s privacy interest in copies of personal information. See Church of Scientology of Cal. v. United States,
“Taxpayers have an obvious possessory interest in their records. When the Government has obtained such materials as a result of an unlawful summons, that interest is violated and a court can effectuate relief by ordering the Government to return the records. Moreover, even if the Government retains only copies of the disputed materials, a taxpayer still suffers injury by the Government’s continued possession of those materials, namely, the affront to the taxpayer’s privacy. A person’s interest in maintaining the privacy of his ‘papers and effects’ is of sufficient importance to merit constitutional protection.”
Id. at 13 (footnote omitted; emphasis added).
If a person makes copies of computer files and stores them on a flash drive, the protection provided by Article I, section 9, against government scrutiny of that information should not dissipate merely because of the form of the information. Under the same logic, defendant’s privacy rights in the contents of his computer hard drive are not lost because those contents are copied and portions of the information are copied again and stored in another storage device.
Nor are a person’s privacy rights in electronically stored personal information lost because that data is retained in a medium owned by another. Again, in a practical sense, our social norms are evolving away from the storage of personal data on computer hard drives to retention of that information in the “cloud,” on servers owned by internet service providers.
Indeed, our case law has rejected a crabbed view that limits the protections of Article I, section 9, to the physical space owned or controlled by a person. The constitutional provision protects more than an interest against physical trespass, assault, or confinement by the government. Under Article I, section 9, “a person’s right to be free from unreasonable searches extends to those places and things in which the person has a ‘privacy interest,’ even when there is no physical or sensory invasion into the person’s own possessions or space.” State v. Johnson,
Our precedents suggest that the existence of a protected privacy interest in private information is not determined by ownership of the storage medium for that information. In Johnson, the issue was whether a person had a protected privacy interest in records of cell phone usage maintained by a cellular telephone service provider. The court recognized that the “[defendant clearly had a cognizable privacy interest in the content of his telephone calls * * * [but not a privacy] interest in keeping private any records * * * respecting his cellular telephone usage.”
In much the same way, we concluded that a defendant did not have a privacy interest in subscriber information in possession of an internet service provider in State v. Delp,
Because of the different nature of the privacy interests protected under the federal and state constitutions, consideration of analogous Fourth Amendment cases is helpful but not instructive. In that area of law as well, the ownership of the storage medium does not determine whether a privacy interest
Finally, I would conclude that the police examination of the CD was a search under Article I, section 9.1 do not view this case, as the majority does, merely as one where “a third person acquires private information and then delivers that information to the police.”
Instead, Wells gave police the CD, a container that held data in which defendant had a privacy interest. The contents of the CD were examined by the police in order to determine their relevance as proof of criminal activity. The evidence sought to be suppressed was images produced when governmental agents opened that container and subjected its contents, defendant’s data, to scrutiny and manipulation. That examination of the contents of the Wells CD constituted a search under Article I, section 9, because it exposed those contents, in which defendant retained a privacy interest, to governmental review.
Again, analogy to Fourth Amendment case law is helpful. In U. S. v. Crist,
The defendant moved to suppress evidence recovered from his computer during that examination. Id. at 576. Among its arguments in response to the defendant’s motion, the government contended that, under the Fourth Amendment, no search occurred during the forensic examination of the defendant’s computer because the governmental agents “didn’t look at any files, they simply accessed the computer.” Id. at 585 (internal quotations marks omitted). The district court, however, concluded: “By subjecting the entire computer to a hash value analysis — every file, internet history, picture, and “buddy list’ became available for Government review. Such examination constitutes a search.” Id. I would come to the same conclusion under Article I, section 9, with respect to the examination of the data on the Wells CD through a search program.
Thus, I would conclude that defendant had a recognized privacy interest in the information stored on his personal computer. ORS 164.377. That information was not generated or maintained by Wells or any third party. Article I, section 9, protects both any possessory interest in the CD from unreasonable seizure and any privacy interest in the data
Defendant does not concede that the images found on his computer are child pornography. I refer to them as child pornography as the parties do in their briefs.
The trial court noted:
“Images from the CD were viewed using a digital photograph viewer, which is available as software. Detective Biles testified the digital photograph viewer software he used to view the images on the CD allowed him to see 50 to 100 images at once in ‘thumbnail’ format.”
ORS 138.060(1)(c) provides:
“The state may take an appeal from the circuit court to the Court of Appeals from:
“(c) An order made prior to trial suppressing evidence!.]”
ORS 138.040 provides, in part:
“Except as provided under ORS 138.050, the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(l)(c) or (2)(a). The following apply upon such appeal or cross-appeal:
“(1) The appellate court may review:
“(a) Any decision of the court in an intermediate order or proceeding.”
Because I would resolve defendant’s first assignment of error on state law grounds, I do not address defendant’s federal constitutional claims. State v. Kennedy,
Article I, section 9, protects against “certain acts of the government.” State v. Campbell,
The Oregon Supreme Court has explained the difference between Article I, section 9, and Fourth Amendment jurisprudence as follows:
“This court has analyzed Article I, section 9, in a different way than the federal analysis under the Fourth Amendment, which focuses on an individual’s reasonable expectations of privacy. As this court has noted, ‘if subjective expectations were determinative of privacy rights, “the government could diminish each person’s subjective expectations of privacy merely by announcing half-hourly on television * * * that we were all forthwith being placed under comprehensive electronic surveillance.” ’ State v. Tanner,304 Or 312 , 321-22 n 7,745 P2d 757 (1987) (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 384 (1974)). Whether or not a particular person expects to be free from observation, therefore, is not relevant to an analysis under the Oregon Constitution: ‘Rights under section 9 are defined by the privacy one has a right to expect.’ Id.”
State v. Wacker,
ORS 164.377 defines the elements of various computer crimes. ORS 164.377(4) provides that “[a]ny person who knowingly and without authorization uses, accesses or attempts to access any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.”
The state does not contend that Wells had actual authority to consent to the search of the CD by the police. “[W]hen the state relies on the consent of a third party to justify a search under Article I, section 9, of the Oregon Constitution, the third party must have actual authority to consent.” State v. Ready,
“Experts have coined the term “Web 2.0’ to describe the shift in Internet usage from consumption to participation and metaphorically refer to this virtual platform as ‘the cloud,’ where users interact with Internet applications and store data on distant servers rather than on their own hard drives.” David A. Couillard, Note, Befogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 Minn L Rev 2205, 2205 (2009) (footnotes omitted).
As recently noted by the Ninth Circuit:
“The advent of fast, cheap networking has made it possible to store information at remote third-party locations, where it is intermingled with that of other users. For example, many people no longer keep their email primarily on their personal computer, and instead use a web-based email provider, which stores their messages along with billions of messages from and to millions of other people. Similar services exist for photographs, slide shows, computer code, and many other types of data. As a result, people now have personal data that are stored with that of innumerable strangers. Seizure of, for example, Google’s email servers to look for a few incriminating messages could jeopardize the privacy of millions.”
United States v. Comprehensive Drug Testing, Inc.,
As noted in a recent article:
“Forty-nine percent of U.S. residents who use cloud computing services would be very concerned if the cloud vendors shared their files with law enforcement agencies, according to a survey released * * * by the Pew Internet and American Life Project. Another 15 percent of respondents said they’d be somewhat concerned, according to the survey * * *.
“Sixty-nine percent of U.S. residents who are online use at least one of six popular cloud services, the survey said. Fifty-six percent of survey respondents use Web mail services, 34 percent store personal photos online and 29 percent use online applications such as Google Documents or Adobe Photoshop Express, according to the survey.
“Among the concerns about cloud computing: 80 percent of respondents said they’d be very concerned if a vendor used their photos and other information in marketing campaigns. Another 68 percent said they’d be very concerned if the vendor used their personal information stored in the cloud to deliver personalized ads to them and 63 percent said they’d be very concerned if the vendor kept their data after they tried to delete it.”
Grant Gross, Cloud Computing May Draw Government Action, InfoWorld, Sept 12, 2008, http://www.infoworld.com/article/08/09/12/Cloud_computing_may_draw_ government_action_l.html (accessed Sept 24,2009).
A hash value and signature analysis of files on a computer hard drive creates a “fingerprint” of each file on the computer. Once generated, those hash values can be compared to the hash values of files known or suspected to contain child pornography. Crist,