State v. Cantrell ( 2023 )

548
Argued and submitted November 21, 2022, reversed and remanded
August 23, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
MERLE FREDRICK CANTRELL,
Defendant-Appellant.
Jefferson County Circuit Court
17CR51432; A175596
536 P3d 606
Defendant appeals from a judgment of conviction for two counts of first-degree
sexual abuse. On appeal, defendant asserts that the trial court erred in denying
defendant’s motion to suppress evidence related to all of his electronic devices. He
argues that the warrant authorizing the search was unconstitutionally overbroad.
Held: The warrant at issue was overbroad in violation of Article I, section 9, of the
Oregon Constitution. When a warrant authorizes a search of multiple electronic
devices, the affidavit supporting the warrant must demonstrate that there is prob-
able cause to search each of the identified devices. State v. Cannon, 299 Or App 616,
627-28, 450 P3d 567 (2019). In this instance, the affidavit supporting the warrant
did not demonstrate that there was probable cause to search each identified device.
Reversed and remanded.
Annette C. Hillman, Judge.
Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
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 Aoyagi, Presiding Judge, and Lagesen, Chief Judge,
and Jacquot, Judge.*
LAGESEN, C. J.
Reversed and remanded.
______________
* Jacquot, J., vice James, J. pro tempore.
Cite as 327 Or App 548 (2023) 549
LAGESEN, C. J.
Defendant appeals a judgment of conviction for two
counts of first-degree sexual abuse, ORS 163.427. He condi-
tionally pleaded no-contest to those counts after the trial court
denied his motion to suppress evidence obtained in a search,
pursuant to a warrant, of a number of his electronic devices.
Although defendant conceded that there was probable cause
to search some of his devices, in defendant’s view, the war-
rant was unconstitutionally overbroad under the rationale of
State v. Cannon, 299 Or App 616, 450 P3d 567 (2019); State
v. Burnham, 287 Or App 661, 403 P3d 466 (2017), adh’d to as
modified on recons, 289 Or App 783, 412 P3d 1233 (2018); and
State v. Friddle, 281 Or App 130, 381 P3d 979 (2016), to the
extent that it authorized a search of the devices apart from
the ones for which he conceded there was probable cause. We
agree and, accordingly, reverse and remand.
We review a trial court’s determination whether a
warrant is invalid on the basis of overbreadth for legal error.
Cannon, 299 Or App at 625. Where a search warrant autho-
rizes the search of multiple electronic devices, the support-
ing affidavit must supply probable cause “for each device
that a warrant authorizes to be searched.” Id. at 629. A
warrant that is supported by probable cause to search some
identified devices, but not all identified devices, is overbroad
and invalid. Friddle, 281 Or App at 142.
With those standards in mind, we turn to the war-
rant at issue in this appeal.1 That warrant authorized a
search of five items (a cellphone, an iPad, a Mac laptop, a
Gateway laptop, and a Logitech keyboard) for evidence of
three crimes (first-degree sexual abuse, encouraging first-
degree sexual abuse, and possession of material depicting
sexually explicit conduct of a child in the first degree).
The warrant was supported by the affidavit of Officer
Farrester of the Madras Police Department. Farrester’s affi-
davit did not address, directly, why there was probable cause
1
Two warrants were issued in connection with defendant’s case. We focus
our discussion on the second warrant, which is the one put at issue by defen-
dant’s arguments on appeal. Because both warrants were addressed at the hear-
ing below, we occasionally refer to “warrants” when describing discussions that
addressed both warrants.
550 State v. Cantrell
to believe any one of those identified devices contained evi-
dence of the specified crimes. Instead, the affidavit started
with a 10-page summary of Farrester’s knowledge, based
on training and experience, about how people use digital
devices. Farrester averred, among other things, that
• Based on his training and experience, “[p]eople
communicate and document activities and import-
ant events digitally on a frequent basis in the form
of image files, multimedia files, and audio files[,]”
which may be created using cameras and cell
phones and used by internet and online services.
• Farrester has “specific training in computer technol-
ogy and in the preservation and recovering of data
from computers and devices such as cell phones.”
He has attended conferences that provided “specific
training on cell phones and computer technology,
preservation and recovery of data[.]”
• Farrester knows from his training and experience
that suspects will often hide digital files and that
the files can be found on a variety of electronic
devices.
• Farrester knows from his training and experience
a range of other ways people use laptops and other
electronic devices to communicate, store and share
data, and memorialize their activities.
After summarizing his training and experience,
and the knowledge he had accrued from it, Farrester out-
lined the investigation that had led him to seek the war-
rant. Pertinent to the issues before us, Farrester explained
that he received a report from a father that his two
daughters—C, age 8, and J, age 9—told him that defendant
had touched them inside the pants on several occasions. The
next day, Farrester interviewed C and J. Each reported that
defendant had touched them on their private parts, includ-
ing on the buttocks and vagina.
The following day, Farrester went to defendant’s
apartment to speak with him about the allegations.
Defendant agreed to an interview at the police station. In
Cite as 327 Or App 548 (2023) 551
that interview, he denied touching C and J on private parts of
their bodies. Defendant also showed Farrester his Facebook
page. Farrester saw that defendant had posted photographs
of C, J, and a third child on the page, as well as video show-
ing J driving a car while sitting on defendant’s lap, and a
video of C playing a children’s video game on defendant’s
iPad.
While defendant was being interviewed at the
police station, his son permitted a different officer to collect
a black LG cell phone, a white iPad, and a black Gateway
laptop with a Logitech keyboard. An officer later collected
a white MacBook computer after defendant told Farrester it
was under his bed. According to Farrester, defendant gave
him permission to examine all those devices.
A day later, C and J underwent forensic interviews.
In those interviews, both children describe various incidents
in which defendant had touched them sexually. C also dis-
closed that, on one occasion, defendant had taken photos of
her vagina, and that defendant also had taken photos of her
“ ‘butt’ with her pants on.” C disclosed that one of the occa-
sions on which defendant touched her was while she was in
the backseat of a car with defendant and J while her grand-
mother was driving.
After the interview, Farrester learned from C and
J’s father that defendant owned a black digital camera and
had SD cards that he used with that camera. Farrester also
interviewed C and J’s grandmother, who confirmed a car
trip similar to the one that C had described.
Based on that information, Farrester asserted that
he had probable cause to search the devices identified above,
as well as “black digital camera and any and all storage
devices for these electronic devices” for “evidence of the
crimes of Sexual Abuse in the first degree, Encouraging
child sexual abuse in the first degree[, and] Possession of
materials depicting sexually explicit conduct of a child in
the first degree[.]” The warrant was issued.
Before trial, defendant moved to suppress all evi-
dence obtained in the search authorized by the warrant.
Defendant moved to suppress evidence related to “all of the
552 State v. Cantrell
Defendant’s electronic devices,” on three grounds: (1) that the
warrant affidavit “failed to establish probable cause that evi-
dence of criminal activity would be found on any electronic
devices belonging to Defendant, or located in Defendant’s res-
idence”; (2) that “search and seizure of his person and prop-
erty was without consent”; and (3) that “search and seizure
of his person and property” was “not supported by probable
cause and exigent circumstances.” In response, the state con-
tended that defendant consented to the search and seizure of
the devices in question, that the warrant was not overbroad,
and that there was probable cause for everything covered by
the warrants. In the course of litigating the motion, defen-
dant conceded that there was probable cause to search some,
but not all, of the devices identified in the warrant.2
After a hearing on the motion to suppress, the court
issued a letter order denying defendant’s motion in full.
It determined that the investigating officer had sufficient
training which, with the facts alleged, established probable
cause for all devices seized and searched under the author-
ity of the two warrants. Furthermore, it concluded that the
warrants were sufficiently limited by time period to not be
overbroad. The court did not address the state’s alternative
argument regarding consent.
Defendant entered a conditional plea of no-contest
to two counts of first-degree sexual abuse, reserving in writ-
ing his right to challenge on appeal the court’s ruling on the
motion.
On appeal, relying on Cannon, defendant first
argues that “the search criteria were overbroad because
they authorized searches * * * of every electronic device in
defendant’s possession” without the support of probable
cause. There was probable cause to believe that defendant
2
On appeal, defendant argues that he should not be bound by his concession,
but we are not persuaded that he should be relieved from it. In addition, the state
and defendant appear to dispute its scope, and the record is ambiguous on the
point. In particular, the state suggests that defendant conceded that there was
probable cause to search one of the laptops, but the record, viewed as a whole,
undercuts that suggestion. Because the scope of the concession does not bear on
our resolution of the legal question presented on appeal, we need not, and do not,
address it. To the extent the scope of the concession may bear on the proceed-
ings on remand, the trial court is in a better position than we are to resolve the
question.
Cite as 327 Or App 548 (2023) 553
took two photos of the victims’ clothed buttocks, one photo
of one victim’s unclothed genitals (“unlawful photos”), and
several videos and photos of the victims. Defendant con-
tends that, even with the experience and qualifications of
the investigating detective, those facts are not enough to
establish probable cause to search each and every device
identified in the warrant.
Second, he argues that the warrant was not suffi-
ciently particular. He asserts that “the warrant also was
overbroad to the extent that the search criteria authorized
the search for ‘any and all digital data * * * used for commu-
nication,’ ‘multimedia files’ including audio and animated
content, ‘incriminating statements * * * documented by com-
municative data’ including all of defendant’s text messages,
emails, social media, and voicemail, all cloud storage data,
and ‘any and all Internet based artifacts[.]’ ” Defendant con-
tends that the information alleged in support of the warrant
“was not sufficient to give rise to probable cause to believe
that incriminating evidence, other than the three specific
photos, would be found in any of the foregoing data.”
As a consequence, he argues, the warrant is invalid
and all evidence obtained under its authority should be sup-
pressed. Alternatively, defendant contends that “[e]ven if
portions of the warrant are sufficiently particular, any evi-
dence that is outside the scope of the probable cause in the
affidavit must be suppressed.”
The state, in response, asserts that we should affirm
on the alternative ground that defendant consented to the
search of his devices. Alternatively, the state contends that
the affidavit establishes probable cause to search each of the
devices at issue. The state further contends that defendant’s
particularity argument is not preserved, and should not be
reviewed for plain error.
To start, we reject the state’s argument that we
may affirm on the alternative ground that defendant con-
sented to the search in question. Although there is evidence
that would support the determination that defendant con-
sented to the search, the evidence does not compel that con-
clusion, and the trial court did not engage in the factfinding
554 State v. Cantrell
necessary to resolve the issue. Accordingly, it does not sup-
ply a basis for us to affirm. State v. Washington, 284 Or App
454, 466, 392 P3d 348 (2017) (explaining that “reaching the
state’s alternative basis would be inappropriate, because the
trial court did not resolve the factual issues necessary” to
resolve the legal question at issue).
As for whether the warrant was impermissibly
overbroad, we are persuaded that this case is not materially
distinguishable from Cannon. There, relying on our prior
decisions in Friddle and Burnham, we determined that a
similar warrant authorizing the search of an array of the
defendant’s electronic devices was unconstitutionally over-
broad. In that case, police obtained a warrant to search for
and then forensically analyze a broad range of electronic
devices:
“(1) ‘any’ cell phones determined to belong to defendant,
(2) ‘all’ computers, including laptops, tablets, iPads, or
iPods, and (3) ‘any and all’ hard drives, gaming systems,
flash drives, thumb drives, SD cards, micro SD cards, CDs,
DVDs, or any other similar devices that store electronic
data for evidence related to the crimes of first-degree pos-
session of materials depicting sexually explicit conduct of a
child (ORS 163.688) and second-degree encouraging child
sex abuse (ORS 163.686).”
Cannon, 299 Or App at 619. The affidavit supporting the
warrant for that search, seizure, and forensic search averred
that sexually explicit images of children had been found on
a computer that the defendant had returned to a pawnshop
after having it in his possession for two weeks; the pawn shop
employees reported that the computer had been wiped clean
at the time the defendant had purchased it. Id. Additionally,
one week before the images were discovered on the laptop,
an officer had responded to a suspicious person complaint
that someone dressed as a Walmart employee was taking
photographs of children. Id. at 619-20. The officer found the
defendant at the store; the defendant was dressed like a
Walmart employee even though he did not work there. Id.
at 620. The affidavit alleged further that the defendant had
convictions for prior sexual offenses, including encouraging
child sexual abuse, and that the defendant had electronic
devices that could connect to the internet in his possession,
Cite as 327 Or App 548 (2023) 555
even though the conditions of his parole precluded him from
possessing those devices.
In addition to those specific facts about the defen-
dant, the affidavit “contained a lengthy description of habits
and behaviors that, in [the officer’s] training and experi-
ence, are commonly associated with individuals who possess
child pornography.” Cannon, 299 Or App at 620. It asserted,
for example, that such persons would commonly obtain and
store sexually explicit images of children on computers and
other digital devices and also would keep such material on
any digital or mobile devices to which they had easy access.
Id.Police executed the warrant and seized two cell-
phones, a laptop, and a gaming device. Id. at 621. A search
of those devices revealed pornographic images of children
on one phone and the laptop. Id. The defendant was charged
with multiple counts of encouraging child sexual abuse. Id.
at 622. He moved to suppress, arguing that the warrant was
overbroad, in violation of Article I, section 9, of the Oregon
Constitution and the Fourth Amendment to the United
States Constitution. Id. The trial court granted the motion.
We reversed. We explained that, when a warrant
authorizes a search of multiple electronic devices, the affi-
davit supporting the warrant must demonstrate that there
is probable cause to search each of the identified devices.
Cannon, 299 Or App at 627-28. In so doing, we again rejected
an argument often repeated by the state—“namely, that the
probable existence of evidence on one device gives rise to
probable cause to search a broad array of electronic devices.”
Id. at 628. We also rejected the argument that the officer’s
general statements based on training and experience could
provide probable cause to search a broad array of electronic
devices, noting that such statements supported, at most, a
conclusion that all of the defendant’s devices “could possibly
contain child pornography.” Id. at 631. “Missing from those
statements, however, is any basis for concluding that every
single cell phone computer, gaming system, or other type of
electronic device owned by defendant was likely to contain
evidence of child pornography.” Id. at 631-32.
556 State v. Cantrell
This case is similarly short on facts specific to defen-
dant and his use of his devices. As in Cannon, the evidence
that defendant had taken sexually explicit photos of the vic-
tims, combined with the officer’s generalized statements,
would support the determination that it was more likely
than not that some of defendant’s devices contained evidence
of the offenses identified in the warrant. But, “Article I,
section 9, requires that probable cause exist for each device
authorized to be searched in a warrant.” Id. at 632 (empha-
sis added). Here, the affidavit supporting the warrant does
not satisfy that standard. In particular, it offers no facts
that would allow for the finding that, more likely than not,
images or other evidence of the alleged crimes could be found
on the keyboard,3 iPad, or both laptops. In particular, there
is no evidence in the affidavit supporting the warrant that
defendant used those devices to take photographs or trans-
ferred photographs to them. See Burnham, 287 Or App at
666 (concluding that warrant authorizing search of multiple
electronic devices was overbroad when it did not establish
facts showing that it was more likely than not that images
had been transmitted to all of the defendant’s devices).
Although there is evidence that defendant posted photo-
graphs and videos to Facebook, there is no evidence that
would allow for the conclusion that it is more likely than
not that he did so from a device other than the one he used
to create the photograph or video. There is also no evidence
that defendant used those devices in any other way in con-
nection with the offenses he was alleged to have committed
against the victims. The best that can be said, as in Cannon,
is that it is reasonable to think that such devices might con-
tain evidence, not that it is likely that they would. As we
observed in Cannon, the constitution demands likelihood,
not reasonable suspicion. Cannon, 299 Or App at 632-33.
For those reasons, the warrant at issue was over-
broad in violation of Article I, section 9. We therefore need
not address defendant’s unpreserved argument that the
warrant was not sufficiently particular.4 We reverse and
3
The state has offered no explanation as to how the keyboard would contain
evidence.
4
Although our ruling would appear to obviate any need to address the par-
ticularity argument, it should not be understood to foreclose defendant from
Cite as 327 Or App 548 (2023) 557
remand for the trial court to consider the state’s argument
that defendant consented to the search in question and for
such other further proceedings as are necessary.
Reversed and remanded.
raising it in the trial court on remand, should we be wrong on that point. We
note that the Supreme Court’s decision in State v. Turay, 371 Or 128, 532 P3d
57 (2023), would govern any proceedings on remand, should the issue arise.
Additionally, to the extent defendant’s concession gives rise to issues regarding
the scope of suppression required, in the event the trial court rejects the state’s
argument regarding consent, those issues are for the trial court to resolve in the
first instance, another issue on which the Supreme Court’s decision in Turay
appears to bear. Turay, 371 Or at 168-69.