OR: “related to controlled substances offenses” in a cell phone SW was not particular

The cell phone search warrant was not sufficiently particular under the state constitution because there were no practical limits in the phrase “related to controlled substances offenses.” State v. Savath, 298 Ore. App. 495 (July 17, 2019):

Here, defendant’s specificity argument focuses on the vagueness of the warrant’s limiting clause, “related to controlled substance offenses.” Defendant argues that, notwithstanding that language, the warrant did “nothing to guide the searcher’s judgment 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 Ore. 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 executing officer of which items were or were not subject to the warrant. See State v. Ingram, 313 Ore. 139, 145, 831 P2d 674 (1992) (concluding that the warrant was insufficiently particular, and therefore invalid, because “the phrase ‘all vehicles * * * associated with the occupants of said premises’ is so standardless that the executing officer must employ discretion in deciding which vehicles to search”).

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Here, in contrast, defendant’s alleged criminal activities did not involve contraband that could be located on his cell phone. 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 Ore. at 212 (internal quotation marks omitted). As a result, the warrant in this case was not sufficiently specific, and therefore did not satisfy the particularity requirement of Article I, section 9.