OR: SW for evidence of murder on cell phone was general search as to its pictures

The search warrant for defendant’s cell phone permitted officers to search for location information, texts, and calls around the time of the murder. It also permitted a search for evidence of attempted murder. Officers found a picture of a gun on the phone that was similar to the gun found discarded at the scene. This part of the search was general, considering the weighty privacy interests in a cell phone as a repository of personal information, and the picture should have been suppressed. The plain view doctrine doesn’t readily apply to the contents of cell phones. State v. Bock, 310 Ore. App. 329, 2021 Ore. App. LEXIS 426 (Mar. 31, 2021):

Meanwhile, allowing warrantless seizures of items in plain view results in a “major gain in effective law enforcement.” Id. When a lawful search is already in progress, it is often “a needless inconvenience, and sometimes dangerous—to the evidence or to the police themselves—to require [police] to ignore [evidence in plain view] until they have obtained a warrant particularly describing it.” Id. at 467-68; see also Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S Ct 2130, 124 L Ed 2d 334 (1993) (“The warrantless seizure of contraband [in plain view] is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment.”); Arizona v. Hicks, 480 U.S. 321, 327, 107 S Ct 1149, 94 L Ed 2d 347 (1987) (“[T]he practical justification for [the plain view doctrine] is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk *** of going to obtain a warrant.”).

Although the rationale in Coolidge and subsequent cases holds up in the context of physical searches, it falters when uprooted and applied wholesale to digital searches, which, as Mansor recognized, require greater scrutiny to protect privacy interests. The digital medium undercuts the plain view doctrine’s pivotal assumption about a defendant’s interests—namely, that seizing an item in plain view involves only a “minor” intrusion. Coolidge, 403 U.S. at 467. Electronic devices contain “unprecedented” amounts of personal information, and, unlike physical searches, searches of electronic devices require examination of at least some information that is beyond the scope of the warrant. Mansor, 363 Ore. at 208, 220. As a result, in an electronic search, much if not all of this unprecedented amount of personal information may come within the plain view of an investigator. Under such circumstances, allowing the state to use any incriminating evidence implicates the precise protection the plain view doctrine normally does not implicate; it effectively converts the plain view doctrine into a vehicle for the execution of a general warrant. This is exactly the type of “undue rummaging that the particularity requirement was enacted to preclude.” Id. at 220. Allowing investigators to use evidence that comes within “plain view” during an electronic search would amount to an end of the particularity requirement so critical to cabin searches of electronic devices.

The state acknowledges this problem, but nevertheless argues that plain view still has a limited role to play in broad electronic searches. According to the state, Mansor provides that only materials discovered “far beyond” the scope of the warrant must be restricted to prevent the state from benefitting fortuitously from the necessary breadth of an electronics search. Accordingly, so long as the material at issue is not discovered “far beyond” the scope of the warrant and can thus be analogized to a nondigital search, such as searching a photo album, the plain view doctrine permits state agents to use it. Because here it was already expected that state investigators would have to search through all of the cell phone’s photos for location data—a type of information regularly embedded in photos—to determine whether the photos contained data from within the searchable time period, the state argues that the plain view doctrine permitted use of the gun photo when investigators discovered it, just as if the police were flipping through a photo album.

We reject the state’s argument. Attempting to retrace the forensic investigator’s steps to determine whether a nondigital analogue would have captured the same evidence is not only judicially unworkable, it also fails to protect the interests served by the plain view exception. See Orin S. Kerr, Searches and Seizures in A Digital World, 119 Harv L Rev 531, 579-80 (2005) (recognizing the difficulty for courts to apply an approach that evaluates the specific forensic steps to determine whether the evidence came into plain view). Although it might have been “expected” that state agents would examine each photo on defendant’s cell phone in searching for location data, that fact does not make the search for those photos somehow less invasive. The state still had to conduct a broad search of defendant’s cell phone to find those photos to search them for location data in the first place. The breadth of the search is what renders the plain view doctrine inapplicable; the alternative would sanction the sort of general warrant that the plain view doctrine was never meant to authorize. Mansor, 363 Ore. at 220; see also Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex Tech L Rev 1, 18 (2015) (explaining that, although electronic searches necessarily must be broad, a restriction on nonresponsive data is necessary to prevent such searches from becoming general warrants). Accordingly, the plain view doctrine did not authorize use of the gun photo, and the trial court erred in denying defendant’s motion to suppress.