OR: Search of computer’s browser history limited to the PC; here, 15 minutes, not two months; a computer is more of a “place to be searched” rather than a “thing to be seized”

Defendant was convicted of murder by child abuse. The only relation of a computer was his admission that he used a computer to search for symptoms when the child was sick 15 minutes before his 911 call. When the computer was searched under a warrant, the entire browser history was examined and there were suggestively incriminating things found as far back as two months earlier. The search warrant here was constitutionally overbroad and permitted a general rummaging in the computer files. It should have been limited to the 15 minute period that brought about the search in the first place because that was the probable cause. Constitutionally, a computer search is more of a “place” to be searched rather than a “thing” to be seized. The “failure to identify with sufficient specificity the place to be searched or the items to be seized and examined can sanction invasions of protected privacy unsupported by probable cause.” State v. Mansor, 279 Ore. App. 778, 2016 Ore. App. LEXIS 952 (July 27, 2016):

Those two concepts—specificity and overbreadth—again, have independent significance. For example, a warrant can precisely and unambiguously identify items to be forensically examined, satisfying the specificity concern, but nevertheless be invalid as overbroad if there is no probable cause to examine some of those items. However, the two can, and frequently do, conflate. That is, failure to identify with sufficient specificity the place to be searched or the items to be seized and examined can sanction invasions of protected privacy unsupported by probable cause. See, e.g., State v. Castagnola, 145 Ohio St 3d 1, 17, 2015- Ohio 1565, 46 NE3d 638, 656 (2015) (noting “overlap” of those concepts with respect to warranted searches of electronic devices).

. . .

We conclude that the warrant in this case was impermissibly overbroad, rendering the warranted search of the contents of defendant’s computers unlawful under Article I, section 9. We appreciate that relying on “physical analogs” in characterizing digital media and information “may hamper rather than enhance our analysis,” because such analogies are necessarily imperfect. Dorelas, 473 Mass at 505-06, 43 NE3d at 315. Nevertheless, on balance, we believe that, for purposes of the constitutional particularity requirement, personal electronic devices are more akin to the “place” to be searched than to the “thing” to be seized and examined. Concomitantly, that requires that the search of that “place” be limited to the “thing(s)”—the digital data—for which there is probable cause to search. See Reid, 319 Ore. at 71 (“[A] warrant may not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.”).

As other courts have readily acknowledged, striking a constitutionally principled but workable balance between “protecting against generality and overbreadth” and not unduly impairing “the legitimate pursuit of prosecuting criminal activity” presents special challenges in this context. Wheeler, 135 A3d at 305; accord United States v. Stabile, 633 F3d 219, 237 (3d Cir), cert den, ___ U.S. ___, 132 S Ct 399, 181 L. Ed. 2d 256 (2011) (noting both that criminal suspects frequently hide or mislabel digital data and that “granting the Government a carte blanche to search every file on the hard drive impermissibly transforms a limited search into a general one” (emphasis in original)). Consequently-and consistently with the precept that “[t]he objective is that the search be as precise as the circumstances allow,” Massey, 40 Ore. App. at 214 (emphasis added)—we are mindful that, when substantiated by competent representations in a warrant submission, potential concealment or manipulation of digital data may justify an encompassing examination of a device’s contents. Still, the touchstone is probable cause, as substantiated by the affidavit(s) submitted with the warrant application.

The warrant here was overbroad. Certainly, Rookhuyzen’s affidavit established probable cause with respect to internet searches during the 15-minute period preceding the 9-1-1 call—and, arguably, with respect to all electronic communications and photos during the entire time that B was in defendant’s care on June 12, 2011. However, nothing in Rookhuyzen’s affidavit established probable cause that a temporally unlimited examination of the contents of defendants’ computers, including of files and functions unrelated to internet searches and emails, would yield other evidence of the events of June 12, 2011, or of any other crime. Accord Wheeler, 135 A3d at 305 (“The Affidavits [authorizing temporally unlimited search of contents of the defendant’s electronic devices] contain[ed] no facts suggesting that any [witness] tampering might have occurred prior to July 2013. Yet, the Witness Tampering Warrants were boundless as to time.”); Keodara, 191 Wash App at 316, 364 P3d at 783 (“Nor did the warrant [authorizing search of contents of the defendant’s cell phone] limit the search to information generated close in time to incidents for which the police had probable cause.”).

The warrant, even as permissibly supplemented by Rookhuyzen’s affidavit, was so unbounded as to sanction the sort of “undue rummaging” that the particularity requirement was enacted to preclude. Massey, 40 Ore. App. at 214. Thus, the warrant in this case was invalid as impermissibly overbroad, rendering the forensic examination of the contents of defendants’ computers unlawful under Article I, section 9. Accordingly, the trial court erred in denying defendant’s motion to suppress. Given the content of the evidence disclosed as a result of the forensic examination, see 279 Ore. App. at ___, that error was not harmless.

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