The electronic search categories any digital storage devices in this search warrant are not particular under the state constitution. Remanded for determination of remedy. State v. Curry, 336 Or. App. 72 (Nov. 6, 2024):
- The two search categories authorizing police to “search for, seize, and examine” any cell phones, computers and “other digital evidence storage devices” and their contents for any evidence of the items listed in the warrant are unconstitutionally overbroad.
The two search categories that authorized the search of “any” cell phones and “any” computers or digital storage devices in the residence are unconstitutionally overbroad under Cannon, 299 Ore. App. at 618, and State v. Cantrell, 327 Ore. App. 548, 536 P3d 606 (2023). “Where a search warrant authorizes the search of multiple electronic devices, the supporting affidavit must supply probable cause ‘for each device that a warrant authorizes to be searched.'” Cantrell, 327 Ore. App. at 549 (emphasis in original; citing Cannon, 299 Ore. App. at 629). It follows that “[a] warrant that is supported by probable cause to search some identified devices, but not all identified devices, is overbroad and invalid.” Cantrell, 327 Ore. App. at 549 (citing State v. Friddle, 281 Ore. App. 130, 142, 381 P3d 979 (2016)).
In this case, the search warrant and supporting affidavit do not establish probable cause for the police to search, seize, and examine “any cell phones,” “any computers,” and “any other digital evidence storage devices.” As in Cannon and Cantrell, Opitz did not present information about why there was probable cause to believe that all the identified devices would contain evidence of use of a child in a display of sexually explicit conduct. Nor could he, because like in Cannon, this search category “authorized a search of all of defendant’s electronic devices, including devices that [his] affidavit did not indicate that defendant even owned.” Cannon, 299 Ore. App. at 624.
Nor did Opitz’s discussion of his training and experience create “the necessary nexus between the nature of the crime, the evidence sought, and the place to be searched, i.e., all of defendant’s electronic devices.” Id. at 631. While Opitz’s statements “may provide a basis for concluding that any single device owned by defendant could possibly contain” evidence of the crime, they do not provide a basis for concluding that every cell phone, computer, and other digital device owned by defendant was more likely than not to contain such evidence. Id. Opitz did not explain how his knowledge about cell phones and computers connected to the particular facts of the present case. And Opitz did not explain why he had probable cause to believe that evidence might be found on any devices located in defendant’s residence. “The best that can be said … is that it is reasonable to think that such devices might contain evidence, not that it is likely that they would.” Cantrell, 327 Ore. App. at 556 (citing Cannon, 299 Ore. App. at 632-33).
We therefore conclude that the two search categories authorizing police to “search for, seize, and examine” “any cell phones and their contents for any of the evidence of the items listed in this warrant” and “any computers and their contents, including computer hard drives, thumb drives, and any other digital evidence storage devices for any evidence of the items listed in this warrant” are over-broad in violation of Article I, section 9.
- The search category that authorized police to search for “[a]ny other evidence of the crime of Using Child in Display of Sexually Explicit Conduct” is not sufficiently particular.
We conclude that the search category authorizing a search for “[a]ny other evidence” of the crime of using a child in a display of sexually explicit conduct is not specific enough to prevent “undue rummaging” by executing officers. Massey, 40 Ore. App. at 214.
As an initial matter, we reject the state’s argument that the challenged category is a permissible restatement of the plain view doctrine. The plain view doctrine applies in the context of seizures and allows officers to “seize an item if the officer can do so from a position where that officer is entitled to be and the incriminating character of the item to be seized is immediately apparent.” State v. Currin, 258 Ore. App. 715, 718-19, 311 P3d 903 (2013) (internal quotation marks omitted). But we are not confronted with a question of whether officers could seize evidence they had lawfully discovered. Instead, we are evaluating a search category that authorizes officers to search for “[a]ny other evidence” of defendant’s alleged crimes.
We conclude that the “[a]ny other evidence” search category is not specific enough to prevent “undue rummaging” by executing officers. Compare Massey, 40 Ore. App. at 214, with Reger, 277 Ore. App. at 91-92 (where the court concluded that a category was sufficiently particular when the “warrant did not provide police with carte blanche to begin ‘rummaging’ through [the] defendant’s home for anything but those kinds of evidence in connection to specific charges” (emphasis added)).
In so concluding, we recognize that “[a] general investigative search of a crime scene * * * differs in nature from a search to seize a specific object, such as stolen property or a drug shipment.” State v. Hodges, 43 Ore. App. 547, 552, 603 P2d 1205 (1979). We further recognize that “in an investigative search of the scene of a recently committed crime, the police do not know in advance what specific items they seek, but do know that instrumentalities and other evidence of crime probably exist and they know the premises upon which such items will be found.” Id. However, we also recognize that “[t]he purpose behind the particularity requirement is a prohibition against general warrants whereby administrative officers determine what is and what is not to be seized, to guide the officer to the thing intended to be seized and to minimize the danger of unwarranted invasion of privacy by unauthorized seizures.” Reger, 277 Ore. App. at 90 (internal quotation marks, brackets, and ellipses omitted). And we recognize that “[t]he ‘degree of specificity’ required to achieve that objective ‘depends on the circumstances and the nature of the property to be seized.'” Id. at 91 (quoting Rose, 264 Ore. App. at 107).
In the present case, under the search categories that we have concluded are valid and those that defendant does not challenge, police were authorized to search for the following categories of items for evidence of using a child in display of sexually explicit conduct: “photos of the interior and exterior of the residence”; “[a]ny photos of [G]”; enumerated items of clothing that G was wearing in photographs that were posted online; and “[a]ny document or item that demonstrates [G] was present at the premises or had contact with persons living at the premises.” The authorization to search for “[a]ny other evidence” of the named crime, in addition to the broad authorization under those search categories, amounts to a general authorization to rummage through defendant’s residence. Compare Massey, 40 Ore. App. at 214, with Reger, 277 Ore. App. at 92 (“Thus, as we concluded in Rose, because the warrant limited police to search for particular types of evidence at a particular location in connection with a specific set of alleged crimes, it was sufficiently particular.”).
We therefore conclude that the “[a]ny other evidence” search category is not sufficiently particular.
