Defendant appeals a judgment of conviction for two counts of hunting upon the cultivated or enclosed land of another without permission, ORS 498.120; two counts of second-degree criminal trespass, ORS 164.245; one count of violating a provision of the wildlife laws or rules with a culpable mental state, ORS 496.992(1); and two counts of third-degree theft, ORS 164.043. On appeal, defendant assigns error to the trial court’s denial of his motion to suppress evidence that was obtained as a result of the execution of a search warrant. Defendant argues, among other things, that the search warrant was overbroad in violation of Article I, section 9, of the Oregon Constitution. We agree with defendant that the search warrant was impermissibly overbroad for reasons articulated in our recent decisions in State v. Friddle,
We review a challenge to the validity of a search warrant for legal error. State v. Castilleja,
Oregon State Police received information that, in August 2012, defendant had trespassed on land owned by Plum Creek Timber Company and killed an elk while hunting there without permission. In December 2012, officers in the Fish and Wildlife Division of the Oregon State Police made contact with a person named Martin, who informed them that he and defendant had entered Plum Creek’s property through a closed gate on August 26 and hunted there. Martin also said that, on August 27, defendant contacted him to ask for help in tracking an elk that he had shot and could not locate, and, on August 28, Martin and defendant again entered Plum Creek’s property to search for the dead elk. Martin told the police that defendant had pointed out where he had been standing when he shot the elk and where the elk was standing when it had been shot. According to Martin, the two followed tracks and a blood trail to locate the elk, and Martin used defendant’s cellular phone to take photos of defendant with the elk at the location where the elk had died. Martin also told the police that defendant had posted the photos on his Facebook page.
Martin subsequently accompanied two officers onto Plum Creek’s property, pointing
Based on that information, Kehr, a fish and wildlife officer, obtained a search warrant for defendant’s residence. The warrant authorized officers to seize and search the contents of “any and all” of defendant’s “computer equipment” and “electronic data devices,” including “any data processing hardware and storage devices, cell phones, computers, laptops, notebooks, computer systems,” and “any other computer storage media that contains information of illegally obtained or possessed wildlife or parts thereof.”
In a supporting affidavit, Kehr averred that, based on his “training and experience as a fish and wildlife officer,” it is “customary and traditional” for a hunter to retain photographs of harvested wildlife and to store those photos in “various formats,” including in “computer media devices” and “laptops.” Kehr further averred that, based on his training and experience, when a cellular phone is used to take photos, “often times the phone will store the date, time, and a geographical location when the function was performed,” and that information “can be stored on, but not limited to, internal memories, and Internet databases.”
In executing the search warrant, officers seized a number of incriminating items. Officers also seized a laptop owned by defendant, performed forensic analysis on its digital contents, and obtained incriminating GPS data from photos discovered on the laptop.
Defendant moved to suppress all evidence derived from the execution of the search warrant, arguing, among other things, that the warrant was overbroad and that the affidavit was insufficient to establish probable cause for the seizure and analysis of defendant’s laptop. The trial court denied defendant’s motion. On appeal, defendant argues that the trial court erred in denying his motion to suppress, reprising his argument that the warrant was impermissibly overbroad.
Article I, section 9, provides, in relevant part: “[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” When a warrant authorizes the seizure and examination of the contents of multiple personal electronic devices—which are, for purposes of the particularity requirement of Article I, section 9, more akin to “‘placets]’ to be searched” than “‘thing[s]’ to be seized and examined”—the affidavit must substantiate ■probable cause for the forensic examination of the contents of each of the electronic devices included in the warrant. Friddle,
Our recent decision in Friddle is closely analogous to this case. In Friddle, the defendant was suspected of assaulting his then-girlfriend. Id. at 131. Police knew that the defendant had a security system that may have recorded the assault, and a police officer had personally observed the defendant accessing an audio recording of the assault on his cellular phone. Id. at 132. Based on that information, the police applied for a warrant to seize and analyze the contents of a broad array of the defendant’s personal electronic devices. Id. at 133-34. The affiant alleged that, based on his “training and experience,” individuals involved in “criminal activity regularly use” cellular phones to “record and store photos, audio recordings, and video recordings of their crimes.” Id. at 133. The affiant stated that it was his belief that a search of the defendant’s cell phones and computer “will show recordings” of the alleged assault. Id.
On appeal, we concluded that, for two reasons, the affidavit was insufficient to support
Applying that reasoning here, we conclude that the warrant was facially overbroad. As in Friddle, the fish and wildlife officers in this case had reliable information that, on one occasion, defendant’s cellular phone was used to create and store potentially incriminating digital photographs. And, as in Friddle, the crime under investigation (illegal hunting) was not one that depended upon or was committed through the use of electronic devices. Thus, in both cases, the only concrete factual link between the crimes under investigation and the multiple electronic devices covered by the warrant was the likely presence of incriminating digital data on specifically identified devices—here, a single cellular phone. As in Friddle, the search-warrant affidavit in this case relies on the evidence potentially contained in the phone to justify the search of other electronic devices based on the invocation of the affiant’s “training and experience.”
Yet, as in Friddle, the affiant in this case alleged no specialized training or experience actually bearing on the transmission of data between electronic devices, nor is there any experience inherent in that of a fish and wildlife officer from which a magistrate could infer such knowledge. See id. at 140 (“The phrase ‘training and experience’ *** is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.” (Internal quotation marks omitted.)). From the affidavit, a magistrate could infer that, because defendant’s cellular phone was used to take incriminating photographs—and defendant posted those photos on his Facebook page—there was a possibility that the photos had been transmitted to at least some of his other electronic devices. Yet, the contents of the affidavit failed to establish that is was more likely than not that such transmission had occurred with respect to all of his devices. See id. at 138 C“[T]he standard of probability requires the conclusion that it is more likely than not that the objects of the search will be found at the specified location.’’” (Quoting State v. Williams,
The state does not argue that any error was harmless. Nor can we conclude, in light of the centrality of the evidence obtained pursuant to the warrant to the state’s prosecution of defendant, that there was little likelihood that the error affected the verdict as to any of the counts of conviction. See State v. Davis,
Reversed and remanded.
Notes
Because we conclude that the trial court erred in denying defendant’s motion to suppress evidence and that the error was not harmless, we do not reach defendant’s other assignments of error.
In light of our disposition, we do not address the remainder of defendant’s arguments bearing on the validity of the search warrant and its execution, including whether the warrant was invalid under the Fourth Amendment to the United States Constitution. See State v. Barnthouse,