STATE OF OREGON, Plaintiff-Respondent, v. SENGDAVANH SAVATH, Defendant-Appellant.
Lane County Circuit Court 15CR22050; A160512
Court of Appeals of Oregon
July 17, 2019
petition for review denied November 14, 2019 (365 Or 722)
298 Or App 495 | 447 P3d 1
Charles M. Zennaché, Judge.
Argued and submitted September 26, 2017
Defendant appeals a judgment of conviction for driving while suspended and controlled-substance offenses, assigning error to the trial court’s denial of his motion to suppress text messagеs found on his cell phone after a warranted search. Defendant argues that the warrant did not satisfy the particularity requirement of Article I, section 9, of the Oregon Constitution. Held: The trial court erred. The warrant to search defendant’s cell phone was insufficiently specific, and therefore insufficiently particular, because the warrant’s summary characterization of the information sought—various types of data on the phone “related to controlled substance offenses”—was insufficient to apprise the executing officer of which items were or were not subject to the warrant.
Convictions on Counts 2, 3, 4, and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
Charles M. Zennaché, Judge.
Lindsey Burrows argued the cause for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Also on the reply brief was O’Connor Weber LLC.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
DEHOOG, P. J.
Convictions on Counts 2, 3, 4, and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
Defendant appeals a judgment convicting him of possession of methamphetamine,
The relevant facts are those set forth in the search warrant affidavit submitted by Officer Harbert of the Springfield Police Department. Harbert arrested defendant for driving while suspended and unlawful manufacture of marijuana after a traffic stop led to the discovery of evidence of those crimes. During a subsequent search of defendant and the car he had been driving, Harbert discovered methamphetamine, oxycodone, a scale, $700 in cash, packaging materials, and payment records that indicated to Harbert that defendant was engaged in drug dealing. Harbert also seized a cellular smartphone in defendant’s possession and sought a warrant to search its contents. Based on Harbert’s affidavit, a circuit court judge issued a warrant authorizing a search of defendant’s smartphone as follows:
“Information on oath having this day been laid before me and established before me that probable cause exists to believe that evidence of the crimes UNLAWFUL DELIVERY METHAMPHETAMINE, UNLAWFUL POSSESSION OF METHAMPHETAMINE, UNLAWFUL DELIVERY OF OXYCODONE and UNLAWFUL POSSESSION
OF OXYCODONE is located on [defendant’s phone], to wit: all names and telephone numbers that have been reсorded on the cell phone to include all outgoing calls, incoming calls, missed calls, phone contact lists and address items; all messages both voice and text, text drafts and emails; all photos, videos; and downloaded items related to controlled substance offenses that may be on the phone.”
(Uppercase in original.) The warrant further authorized the executing officer to dеsignate a qualified technician “to search the above-described cell phone for the above-described evidence.”
The resulting search of defendant’s phone disclosed a number of text messages suggestive of drug use and trafficking.2 Defendant moved to suppress that evidence, arguing that the warrant failed to fulfill the particularity requirement of the Oregon and United States constitutions.3 The trial court denied the motion and, following a jury trial, entered a judgment of conviction.
On appeal, defendant assigns error to the denial of his motion to suppress. Defendant contends that the warrant here was insufficiently particular, and therefore wholly invalid, because it failed to specifically identify the object of the warranted search and because the underlying affidavit did not prоvide probable cause for the full breadth of the search that the warrant authorized. The Supreme Court recently considered both of those aspects of
“Our cases have identified two related, but distinct, concepts that inform the particularity analysis—specificity and overbreadth. A warrant must be sufficiently specific in describing the items to be seized and examined that the officers can, with reasonable effort[,] ascertain those items to a reasonable degree of certainty. But, even if the warrant is sufficiently specific, it must not authorize a search that
is broader than the supporting affidavit supplies probable cause to justify.”
(Internal quotation marks and citations omitted.) Relying on Mansor, defendant argues that (1) the warrant was not sufficiently specific, because it did not allow thе executing officer to “ascertain *** to a reasonable degree of certainty” what information on the phone was “related to controlled substance offenses” and (2) the warrant was overbroad, because it placed no temporal limitations on the objects of the search and the affidavit did not even mention at least two of the categories of data in the wаrrant—emails and “downloaded items”—much less establish probable cause to search those items.4
The state, for its part, does not respond to defendant’s overbreadth argument. Instead, the state argues at the outset that, because only the search of defendant’s text messages produced any incriminating evidence, we must evaluate the warrant as though it had authorized a search оnly for “all messages *** text[s], [and] text drafts * ** related to controlled substance offenses that may be on the phone.” Severed in that manner, the state contends, the warrant was not overbroad, because, in its view, the affidavit supplied probable cause to search defendant’s text messages. As to defendant’s specificity argument, the state argues that the warrant was sufficiently specific bеcause it identified the object of the search by referring to the crimes at issue—possession and delivery of methamphetamine and oxycodone—and limiting the search to matters “related to controlled substance offenses.”
We need not consider the merits of the state’s severance argument, because we conclude that, even if severed as the state suggests it must be, the warrаnt would remain insufficiently specific, and therefore violate the particularity requirement of
Whether a warrant complies with the particularity requirement of
Both the Supreme Court of the United States and the Orеgon Supreme Court have recognized that, with regard to searches for data on cell phones or similar electronic devices, the particularity requirement takes on special significance. “[U]nlike most other ‘things’ that may be seized in a search, a computer or other digital device is a repository with a historically unprecedented capacity to collect аnd store a diverse and vast array of personal information.” Id. at 208 (recognizing that a cell phone might be better viewed as a “place” to be searched than a “thing” to be examined); see Riley v. California, 573 US 373, 396-97, 134 S Ct 2473, 189 L Ed 2d 430 (2014) (observing that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house” (emphasis in original)). At the same time, however, the apрlication of the particularity requirement to warrants authorizing electronic searches creates challenges not usually present with physical searches. “[A] category of information that is a likely source of evidence ** * may be composed of many types of data and files, and the * ** software’s organization of those data and files may be unrelated to the user’s perсeption of how their data is organized.” Mansor, 363 Or at 197 (rejecting, for that reason, requirement of ex ante limitations based on file or data type or specific application). Further, there is typically “no way to know what data a file contains without opening it,” as specific files may be hidden or disguised, either intentionally or inadvertently. Id. at 198Id. at 218; see Andresen v. Maryland, 427 US 463, 482 n 11, 96 S Ct 2737, 49 L Ed 2d 627 (1976) (holding, in nondigital context, that warranted search of attorney’s office for certain papers did not violate
In light of those considerations, a warrant for an electronic search “must identify, as specifically as reasonably possible in the circumstances, the information to be searched for.” Mansor, 363 Or at 218 (emphasis added). As Mansor explains, the essential “thing” about which a warrant must be particular is the probаtive information, not types of files or their location within the computer’s file-management system: “[T]he ‘what’ is a description of the information related to the alleged criminal conduct which there is probable cause to believe will be found on the computer.” Id. at 216 (emphasis in original). To further narrow the search and specify the information sought, the warrant must include, “if relevant and available, the time period during which that information was created, accessed, or otherwise used.” Id. at 218.
Here, defendant’s specificity argument focuses on the vagueness of the warrant’s limiting clause, “related to controlled substance offenses.”7 Defendant argues that, notwithstanding that language, the warrant did “nothing to guide the searcher’s judgmеnt in how to limit the search for relevant material.” Applying Mansor, we agree with defendant. That clause, and the general references to the offenses of possession and distribution of methamphetamine and oxycodone, comprised the warrant’s only description of “the information related to the alleged criminal conduct which there is probable cause to believe will be found on the computer.” Mansor, 363 Or at 216 (emphasis in original). The balance of the warrant merely listed file types and categories of communications data that might be found within the phone: “all names and telephone numbers,” “all messages both voice and text, text drafts and emails,” and “all photos, videos[,] and downloaded items.” As Mansor explains, however, such details regarding specific “locations” within the phone do little if anything to satisfy the particularity requirement. That is, a description of “where,” on a device, officers might search, says almost nothing about the information they may seek—the “what” as to which the warrant must be particular. Under those circumstances, the warrant’s summary characterization of the information sought—“related to controlled substances offenses”—was insufficient to apprise the
Resisting that conclusion, the state argues that the search warrant at issue in this case was no less specific than the warrant we approved of in State v. Rose, 264 Or App 95, 330 P3d 680, rev den, 356 Or 400 (2014). In that case, we held that the warrant was sufficiently particular because it “stated that the police could search for, and seize, evidence of the crimes of using a child in a display of sexually explicit conduct and encouraging child sexual abuse located in the electrоnic files stored in defendant’s Yahoo[!] account.” Id. at 109. To the extent, however, that the above language from Rose can be read to suggest that describing the information simply as “evidence of a particular crime” can satisfy the specificity requirement, we note that Mansor expressly rejected the argument that a warrant is “sufficiently particular if it simply identifies the crime or crimes being investigated.” 363 Or at 222. We also note that the defendant in Rose did not challenge the specificity of the warrant and made only a “narrow” overbreadth argument. See State v. Mansor, 279 Or App 778, 800-01, 381 P3d 930 (2016), aff’d on other grounds, 363 Or 185, 421 P3d 323 (2018) (discussing Rose, 264 Or App at 107).
In any event, Rose is distinguishable based on the nature of the suspected criminal activity there—creating and possessing child pornography. As we stated in Rose, the “degree of specificity required * * * depends on the circumstances and the nature of the property to be seized.” 264 Or App at 107. Unlike the crimes being investigated here, the character of the criminal activity at issue in Rose served to greatly clarify and limit the most expansive section of the warrant, which otherwise authorized a search for “[a]ny and all contents of electronic files *** stored in the subscriber’s Yahoo! Account.” Id. at 98. Given the nature of the crimes being investigated there, a reasonable officer
Here, in contrast, defendant’s alleged criminal activities did not involve contraband that could be located on his cell phonе. Thus, neither the warrant’s identification of the crimes for which evidence was sought, nor its purported limiting language of “related to controlled substance offenses,” was sufficient to enable an officer, “with reasonable effort[, to] ascertain those items [to be seized and examined] to a reasonable degree of certainty.” See Mansor, 363 Or at 212 (internal quotation marks omitted). As a result, the warrant in this сase was not sufficiently specific, and therefore did not satisfy the particularity requirement of
Because the warrant and resulting search in this case violated
Convictions on Counts 2, 3, 4, and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.