STATE OF OREGON, Plaintiff-Respondent, v. TROY ANTHONY MONGER, Defendant-Appellant
Nos. 14FE0086, 13FE1069; A160640 (Control), A160641, A160069
Oregon Court of Appeals
2020
306 Or App 50 | 472 P3d 270
Submitted March 5, 2018; in Case No. 13FE1069, conviction on Count 2 reversed and remanded, remanded for resentencing, otherwise affirmed; in Case No. 14FE0086, affirmed August 19; petition for review denied December 10, 2020 (367 Or 291)
Beth M. Bagley, Judge. Stephen P. Forte, Judge.
Defendant challenges his convictions for three counts of encouraging child sexual abuse in the first degree,
In Case No. 13FE1069, conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 14FE0086, affirmed.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Troy A. Monger filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the briefs for respondent.
Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
POWERS, J.
In Case No. 13FE1069, conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 14FE0086, affirmed.
In this consolidated criminal appeal, defendant challenges his convictions for three counts of encouraging child sexual abuse in the first degree,
We review a trial court‘s denial of a motion to suppress for errors of law, and we are bound by the trial court‘s findings of fact if they are supported by the record. State v. Baker, 350 Or 641, 650, 260 P3d 476 (2011).
The facts are undisputed. Bend Police Officer Michaud went to question defendant at his home to investigate Facebook messages between defendant and a minor, S, as part of a sex abuse investigation. Defendant showed Michaud his desktop computer and the incriminating messages on his Facebook account. During the interaction, defendant consented to the search and seizure of his computer and cell phone, provided the passwords to his computer, Facebook account, and phone, and subsequently he was arrested.
On August 22, two days after defendant was arrested, Michaud applied for a warrant to search defendant‘s computer and cell phone that were in police custody, and the warrant was issued that same day. The warrant authorized officers to “search and/or seize and/or analyze and/or photograph
At the suppression hearing, defendant contended, among other arguments, that the officers failed to “execute” the search warrant within five days of its issuance as required by
“the search warrant shall be executed between the hours of 7 a.m. and 10 p.m. and within five days from the date of issuance. The judge issuing the warrant may, however, by indorsement upon the face of the warrant, authorize its execution at any time of the day or night and may further authorize its execution after five days, but not more than 10 days from the date of issuance.”
Specifically, defendant argued that the search warrant was “executed” on September 24, when the forensic evidence officer made a digital copy of the devices. Because September 24 is beyond five (or even 10) days from the issuance of the warrant, defendant asserted that the warrant had expired and, therefore, under our decision in State v. Daw, 94 Or App 370, 765 P2d 241 (1988), all evidence gathered from the search should have been suppressed. We held in Daw, 94 Or App at 372, that a search warrant executed beyond the temporal statutory requirements is a warrantless search, necessitating suppression of evidence gathered from that search if there is no applicable exception to the warrant requirement. Id.
The state argued that, under our decision in State v. Callaghan, 33 Or App 49, 576 P2d 14, rev den, 284 Or 1 (1978), the warrant was executed on August 23, when Michaud sent the warrant to Hubbard, the forensic evidence officer in possession of the devices. In the state‘s view, Callaghan observed that the legislature did not intend the execution requirement in
The trial court denied defendant‘s suppression motion, concluding that Callaghan controlled and that the warrant was executed on August 23. Because August 23 was within the five-day execution requirement under
On appeal, the parties renew their arguments about the interpretation of
to Hubbard to begin the process of searching and analyzing defendant‘s personal electronic devices.
In Callaghan, officers notified the defendant that they had a search warrant and simultaneously commenced the search of the defendant‘s home. 33 Or App at 55. The officers served the defendant with the search warrant and began the search at 8:30 a.m., but the search continued until 12:30 a.m., the next day. Id. The defendant moved to suppress all evidence gathered from the search after 10 p.m., citing a violation of
We agree with defendant‘s argument that Callaghan does not squarely address the situation in this case. As an initial matter, the dispute in Callaghan focused on whether officers had executed the search warrant of the defendant‘s house during the hours of 7 a.m.
address the situation in this case where Hubbard did not make a digital copy of defendant‘s personal devices until well after the timelines described in
More fundamentally, a search of a home is qualitatively different than a search of a cell phone or computer. As the Supreme Court of the United States recognized,
“a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.”
Riley v. California, 573 US 373, 396-97, 134 S Ct 2473, 189 L Ed 2d 430 (2014) (emphasis omitted). The Oregon Supreme Court has explained that “a computer or other digital device is a repository with a historically unprecedented capacity to collect and store a diverse and vast array of personal information.” State v. Mansor, 363 Or 185, 208, 421 P3d 323 (2018). Given the fundamental difference between a warrant authorizing the search of a home and a warrant authorizing the search of personal electronic devices, we conclude that the discussion of the term “executed” in Callaghan does not fully control the outcome of this case.
To the extent that the state relies on State v. Munro, 339 Or 545, 552, 124 P3d 1221 (2005), to argue that, “once police have lawfully seized evidence pursuant to a warrant that authorizes its search, the owner no longer has any constitutionally protected interest in its contents,” we conclude that that argument is foreclosed by Mansor. In Munro, officers were granted a warrant to seize and search the defendant‘s videotape for evidence of drug crimes. 339 Or at 548-49. Initially, the videotape appeared to be blank, but officers kept the tape nonetheless. Id. at 549. A year later, upon receipt of a tip, and after a more exhaustive search, officers discovered evidence of child pornography on the videotape. Id. The defendant moved to suppress that evidence, arguing that it was a warrantless search because the original warrant only authorized a search for evidence of drug crimes. Id. at 549-50. The trial court denied the motion, the defendant
was ultimately convicted of a sex crime, and appealed his conviction. Id. On appeal, the Supreme Court held that,
“[o]nce they lawfully had seized the videotape, nothing prevented the police from examining the contents of the videotape as often as they deemed necessary. Furthermore, once the videotape was lawfully seized under the authority of the warrant, any images stored on the videotape, no matter how hidden, private, or secret, were no longer protected by
Article I, section 9 [, of the Oregon Constitution.]”
In this case, the state would have us apply that same reasoning to seizure of defendant‘s personal electronic devices, viz., once defendant‘s computer and cell phone were lawfully seized, he lost all possessory and privacy interests in them. However, the Supreme Court explicitly rejected that argument in Mansor, which was decided after the state submitted its answering brief in this case.
In Mansor, the court discussed the holding of Munro in the context of personal electronic devices and concluded that it is an erroneous assumption to equate a videotape with a computer or a cell phone. Mansor, 363 Or at 209-10. That is because, unlike a videotape, “[t]he data contained on a personal computer is qualitatively and quantitatively different from the sort of information that could be found in other single objects, or even an entire house not containing digital data.” Id. at 210. The court,
That leaves us, then, to apply our familiar statutory interpretive framework to determine what
within a specified time period. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (explaining that we examine a statute‘s text, context, and pertinent legislative history to discern the legislature‘s intent). If the legislature has not provided a definition of a statutory term, we “ordinarily look to the plain meaning of a statute‘s text as a key first step in determining what particular terms mean.” Comcast Corp. v. Dept. of Rev., 356 Or 282, 295, 337 P3d 768 (2014).
Here, because the legislature did not provide a definition of the term “executed,” as it is used in
We begin by noting that defendant acknowledges that the officers timely executed part of the warrant when an officer filed a copy of the warrant with police records and sent another officer the warrant with a request to perform a forensic analysis.6 Thus, defendant‘s argument suggests that the term “executed” requires a completed act—that is, an act that “has been done“—as opposed to an act that is in the process of being carried out or performed. We reject that restrictive understanding of the term given the context of
For context,
defendant‘s personal electronic items that were already seized and were sitting in the Bend Police Department‘s evidence facility. Although it is plausible to interpret “executed” to require completion of each of those authorizations (i.e., to have searched, seized, analyzed, photographed, and digitally duplicated), there does not appear to be anything in the text or context of
As we observed in Callaghan, the legislature did not intend for “execute” to mean a fully completed search. Of course, Callaghan answered a slightly different question with respect to the 7 a.m. to 10 p.m. window, observing: “It is the initial shock of officers
More to the point, the Commentary describes the staleness concerns that the legislature was addressing when it enacted the five- or 10-day execution requirement:
“It seems desirable to keep the time allowed for execution of search warrants as short as possible. This tends to eliminate problems with respect to staleness of the warrant which often form a fruitful basis for attack on the legality of the warrant.”
Commentary § 135 at 75. Here, where the warrant authorized the search, seizure, analysis, and digital duplication of defendant‘s electronic devices, it would be anomalous to conclude that a seizure of an electronic device within five days was permissible but that the subsequent search or analysis of the same electronic device that had been stored in an evidence room after weeks had elapsed somehow effected staleness concerns. Indeed, as previously noted, defendant acknowledges that the officers timely executed part of the warrant by filing a copy of the warrant with police records and sending Hubbard the warrant with a request to perform a forensic analysis.
In short, we conclude that “executed” for purposes of
Finally, as noted earlier, defendant‘s conviction for second-degree online sexual corruption of a child was the result of a nonunanimous jury verdict. Although defendant did not raise an objection at trial, he now asserts—and the state concedes—that acceptance of the verdict was plain error under the
the error and because the failure to raise the issue before the trial court did not weigh heavily against correction, as the trial court would not have been able to correct the error under the controlling law at that time. For the reasons articulated in Ulery, we exercise our discretion to correct the error.
In Case No. 13FE1069, conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 14FE0086, affirmed.