State v. Cannon ( 2019 )

616
Argued and submitted May 3, affirmed October 2, 2019
STATE OF OREGON,
Plaintiff-Appellant,
v.
DAVID LEE CANNON,
Defendant-Respondent.
Lincoln County Circuit Court
18CR08044; A168112
450 P3d 567
The state appeals from a pretrial order granting defendant’s motion to sup-
press seven images of child pornography found on defendant’s cell phone during
a forensic examination of various electronic devices authorized by a search war-
rant. The trial court determined that the warrant, which permitted the search of
any cell phone, computer, or other device capable of storing electronic data, was
overbroad, and thus invalid. On appeal, the state argues that the warrant was
not overbroad because the totality of the circumstances alleged in the support-
ing affidavit gave rise to probable cause to search any of defendant’s electronic
devices that were identified in the warrant. Held: The trial court did not err.
Although the facts in the affidavit justified a suspicion that defendant possessed
child pornography, the affidavit did not provide a factual basis from which a
reasonable magistrate could conclude that it was probable that evidence would
be found on every electronic device that the warrant authorized to be searched.
Because the warrant permitted a search broader than was supported by prob-
able cause, the warrant was overbroad in violation of Article I, section 9, of the
Oregon Constitution, and the trial court properly granted defendant’s motion to
suppress.
Affirmed.
Thomas O. Branford, Judge.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Laura A. Frikert, Deputy Public Defender, argued the
cause for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
Cite as 299 Or App 616 (2019) 617
SHORR, J.
Affirmed.
618 State v. Cannon
SHORR, J.
The state appeals a pretrial order granting defen-
dant’s motion to suppress evidence. ORS 138.045(1)(d).
Defendant was charged with 16 counts of first- and second-
degree encouraging child sexual abuse. ORS 163.684; ORS
163.686. The charges stemmed from seven images found on
defendant’s cell phone and one image discovered on defen-
dant’s laptop computer in the course of a forensic exam-
ination of those devices authorized by a search warrant.
Defendant moved to suppress the images discovered on his
cell phone, arguing that the warrant was invalid because it
was overbroad and not supported by probable cause.1 The
trial court granted defendant’s motion.
In a written opinion, the trial court ruled that the
search warrant was overbroad because it permitted a search
of “any” cell phone, computer, or other device capable of stor-
ing electronic data owned or possessed by defendant, when
the facts averred in the supporting affidavit established
probable cause to search only one cell phone. The court also
ruled that the overbroad portions of the warrant could not
be severed. The state appeals, assigning error to the trial
court’s grant of defendant’s motion to suppress, contend-
ing that the warrant was not overbroad. Defendant cross-
assigns error to the trial court’s failure to grant his motion
to suppress on the ground that probable cause did not exist
for any of defendant’s devices, including his cell phone.
Because we conclude that the trial court did not err in rul-
ing that the search warrant was overbroad and suppressing
the evidence on that basis, we affirm on the state’s appeal
and do not need to address defendant’s cross-assignment of
error, which offers a different path to affirming the suppres-
sion of the same evidence.
In reviewing whether a search warrant was sup-
ported by probable cause, we consider only those facts put
before the magistrate in the supporting affidavit, along
with reasonable inferences that can be drawn from them.
State v. Williams, 270 Or App 721, 722, 349 P3d 616 (2015);
1
Defendant did not move to suppress the image found on his laptop com-
puter. Defendant conceded that, when the image was found, he no longer had a
privacy interest in the computer.
Cite as 299 Or App 616 (2019) 619
State v. Ramirez, 223 Or App 241, 244, 195 P3d 460 (2008).
The following facts are taken from the affidavit of Detective
Cummings of the Newport Police Department in support of
his application for a search warrant to search defendant’s
car for, and to forensically analyze, among other things,
(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, USB 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 possession of materials depicting sexually explicit
conduct of a child (ORS 163.688) and second-degree encour-
aging child sexual abuse (ORS 163.686).
Cummings averred that he had been contacted by
another Newport police officer, Davis, after “lewd” images of
children were found on a blue Hewlett Packard (HP) laptop
that defendant had purchased from a pawn shop, retained
for approximately two weeks, and then sold back to the same
pawn shop. Employees of the pawn shop contacted police
when they found the images on the laptop while cleaning
it for resale. The images included several naked photos of
defendant, a photo of a four- or five-year-old naked female
child in a plastic kiddie pool, a photo of a clothed female
child “lying down in a very ‘provocative’ pose,” and multiple
images that were password protected. Defendant had pur-
chased the computer from the pawn shop on July 13, 2017,
and he had sold it back to the same pawn shop on July 27,
2017. One of the employees confirmed that he was “abso-
lutely positive” that the computer had been “wiped clean”
and restored to its original factory settings before being sold
to defendant. The employee confirmed that the serial num-
ber of the computer sold to defendant on July 13 was the
same as the number on the computer sold back by defendant
on July 27. Davis seized the HP laptop and secured it in an
evidence locker at the Newport Police Department.
Cummings also averred that, approximately one
week before the images were discovered on the laptop, on
July 22, 2017, Davis had been dispatched to a Walmart store
on a suspicious person complaint. The complaint was that
a man was dressed as a Walmart employee and “hanging
620 State v. Cannon
around in the store where children congregate and taking
photographs of children.” Davis believed that the suspect
was “possibly” using a cell phone to take the photos. When
Davis arrived at Walmart, he found defendant dressed
in clothing that made him look like a Walmart employee,
although defendant did not work at Walmart. Davis did not
arrest defendant at that time but instructed defendant to
contact his parole officer.
After learning the above information from Davis,
Cummings reviewed defendant’s criminal history. Defen-
dant had been convicted in 2009 of first-degree sexual
abuse and second- and third-degree encouraging child sex-
ual abuse. Cummings discovered that defendant is a regis-
tered sex offender who was on parole. Cummings contacted
defendant’s parole officer, Morgan, who told Cummings that
defendant, as a condition of his parole, was not allowed to
own or possess any electronic devices that are capable of
connecting to the internet. Cummings learned that Morgan
had arrested defendant on July 31, 2017, for violating that
condition by owning and/or possessing the HP laptop. When
Morgan arrested defendant, defendant admitted to Morgan
that he had a Samsung smart phone inside his vehicle.
Defendant’s vehicle was parked in the parking lot of the
parole office. Morgan told Cummings that he was familiar
with the particular model of Samsung phone that defendant
had admitted to owning and that the phone was capable of
connecting to the internet.
In addition to the above, Cummings’s affidavit con-
tained a lengthy description of habits and behaviors that, in
his training and experience, are commonly associated with
individuals who possess child pornography. For instance,
Cummings averred that “people who are sexually attracted
to children will often obtain sexually explicit images of chil-
dren from the internet and store these images on their com-
puter or other digital storage device.” He also averred that
“it is more common than not for persons involved in posses-
sion and/or distribution of child pornography to use mobile
devices, such as cell phones, laptop computers, or tablet
computers to share or receive their pornographic material,”
and that such persons will “more often than not keep their
pornographic material saved on their smart cell phones,
Cite as 299 Or App 616 (2019) 621
computers, laptops, tablet computers, thumb drive, SD cards,
or any other mobile devices they have for easy access to.”
(Emphasis added.)
Cummings’s affidavit was submitted along with a
search warrant application. The application sought autho-
rization to search defendant’s car and to seize, among other
things:
“4.01 All computers, to include laptops, tablets, IPads,
IPods found inside the Vehicle as described above.
“4.02 Any cell phones that, during analysis authorized by
a search warrant, are determined to belong to [defendant].
“4.03 Any and all hard drives, gaming systems, flash
drives, thumb drives, USB drives, SD cards, micro SD
cards, Compact Disks [sic], DVDs or other similar devices
that store electronic data that is found inside the vehicle
listed above.”
The warrant further authorized police to forensically exam-
ine the above listed items
“for all forms of evidence related to the charges listed at
the beginning of this Affidavit, including but not limited
to photo images, video images, audio files, text messages,
emails, instant messages, chat logs, call logs, web browser
history, Social media profiles, File sharing web sites or pro-
grams in which child abuse images can be uploaded, down-
loaded and stored between July 13, 2017 and July 27, 2017.”
A magistrate approved the search warrant.
In the course of the ensuing search of defendant’s
car, police seized two Samsung smart phones, a Gateway lap-
top, and an unidentified electronic device later determined
to be a gaming system. The gaming system was never ana-
lyzed. The Gateway laptop was analyzed, and no evidence
was discovered. One of the cell phones, a Samsung Galaxy
J-3 model, was analyzed, and no evidence was discovered.
The other cell phone, a Samsung Galaxy AMP Prime model,
was analyzed, and seven images of child pornography were
discovered on it. The HP laptop, which was already in police
custody, was also searched pursuant to the search war-
rant, and one image of child pornography was discovered
on it.
622 State v. Cannon
Based on the eight images found on the Prime
phone and the HP laptop, defendant was charged with eight
counts of first-degree encouraging child sexual abuse and
eight counts of second-degree encouraging child sexual
abuse. Defendant moved to suppress the seven images found
on the Prime phone.2 Defendant argued that the search
warrant was overbroad in violation of Article I, section 9,
of the Oregon Constitution and the Fourth Amendment to
the United States Constitution. Defendant argued that the
affidavit did not establish probable cause to search any elec-
tronic devices aside from the HP laptop, including any of
defendant’s cell phones. Accordingly, defendant argued, the
warrant was overbroad insofar as it permitted the search
and seizure of “any” and “all” cell phones, computers, hard
drives, and other similar electronic devices found in defen-
dant’s car. The state responded first that the warrant was
not overbroad and, in the alternative, to the extent that the
warrant was overbroad, that a search of both of defendant’s
Samsung cell phones was supported by probable cause
and that any overbroad provisions in the warrant could be
severed.
After hearing testimony from Cummings regarding
the execution of the warrant, the trial court issued a written
opinion in which it granted defendant’s motion to suppress
on the ground that the warrant was overbroad. The court
concluded that a search of one of defendant’s Samsung cell
phones was supported by probable cause, based on defen-
dant’s prior criminal history, his behavior at Walmart, and
the “lewd” images found on the HP laptop. However, the
court concluded that the warrant was
“invalid for being overly broad, i.e., for authorizing
searches of objects which Cummings did not even know
that Defendant owned, possessed, or used during the two-
week period. Cummings knew about only one Samsung
smart phone; he found two. There is no evidence in the case
whether the incriminating images were found on the cell
phone which Morgan and Cummings could see from outside
2
In his motion to suppress, defendant identified the images that were the
subject of the motion as having been found on the J-3 phone; however, the record
indicates—and the trial court found—that the relevant images were found on the
Prime phone. We accept that finding.
Cite as 299 Or App 616 (2019) 623
the Defendant’s car * * *.[3] The search warrant did not limit
the seizure and search to the one phone for which probable
cause existed when the warrant was issued, and the evi-
dence does not inform the Court as to whether the unlawful
images came from the one visible Samsung smart phone.”
(Internal quotation marks omitted.)
The trial court also noted that our opinion in State
v. Mansor, 279 Or App 778, 381 P3d 930 (2016), aff’d, 363 Or
185, 421 P3d 323 (2018), compared cell phones to houses in
terms of the privacy interest at stake. The court reasoned
that the warrant here was overbroad in authorizing the
search of any and all electronic devices found in the car. The
court reasoned that, in that respect, the warrant was simi-
lar to a warrant authorizing the search of a residence that
police did not know existed:
“Except for the Pawn Shop computer and the Samsung smart
phone (the singular, not the plural), Detective Cummings
did not know if the Defendant even owned or possessed any
of the other items for which he sought authority to seize,
search and analyze. It would be similar to a Judge authoriz-
ing a search of an identified house in Newport and any other
residence which a defendant owned or in which that defen-
dant had a possessory interest, despite the search warrant
affiant not knowing about such an additional residence or
including it in the affidavit. Assume that the search of the
Newport house was lawfully authorized by a search war-
rant. If the same person owned/possessed a hunting lodge
up the Yachats River (and in Lincoln County), and that
hunting lodge was not specified in the search warrant but
was later discovered by the police after the search warrant
was signed, would a search of the alternate Yachats River
residence be lawful? Obviously not, because of the require-
ments of ORS 133.545(6), the federal and state constitu-
tions, and a plethora of appellate case law.”
(Emphasis omitted.)
3
The trial court found, based on Cummings’s testimony about the execution
of the warrant, that one Samsung smart phone was visible when police went
to search defendant’s car. The court reasoned that there was probable cause to
search that phone, but not the second phone that was found during the search of
the car. As explained below, 299 Or App at 626-27, the court mistakenly relied on
information outside the four corners of the affidavit in making its probable cause
determination. However, as further explained below, that reliance is immaterial
to our analysis.
624 State v. Cannon
In other words, the court ruled that probable cause
existed only for the one Samsung cell phone that Cummings
knew about before the search and that the warrant was
overbroad because it authorized a search of all of defendant’s
electronic devices, including devices that Cummings’s affi-
davit did not indicate that defendant even owned. The trial
court concluded that the overbroad provisions could not be
severed from the remainder of the warrant in a way that
would allow the search of defendant’s cell phone. Thus, the
court granted defendant’s motion to suppress the seven
images from the Prime phone.
The state now appeals that ruling, ORS 138.045
(1)(d), assigning error to the trial court’s grant of defendant’s
motion to suppress. The state argues that the totality of the
circumstances alleged in the affidavit gave rise to probable
cause to believe that any electronic devices in defendant’s
possession would contain child pornography and, thus, that
the search warrant was not overbroad. Specifically, the state
argues that the trial court erred in failing to consider both
the nature of the crime at issue and Cummings’s statements
based on his training and experience. In support of that posi-
tion, the state argues that child pornography investigations
are substantively different from the type of investigations in
the cases relied on by the trial court, because in a child por-
nography investigation—or at least in this particular child
pornography investigation—the crimes at issue depend on
and are committed through the use of electronic devices.
See 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) (holding that a warrant for searching multiple
electronic devices was overbroad in the context of an illegal
hunting investigation); State v. Friddle, 281 Or App 130, 381
P3d 979 (2016) (holding that a warrant permitting forensic
examination of various devices was overbroad in the context
of an assault investigation).
Alternatively, the state argues that, because prob-
able cause existed to search a Samsung smart phone in
defendant’s car, there was probable cause to search both
Samsung phones that were found in defendant’s car because
both phones matched the description of the device for
which probable cause existed, and “police are not limited
Cite as 299 Or App 616 (2019) 625
to searching only the one most promising place.” See State
v. Villagran, 294 Or 404, 413, 657 P2d 1223 (1983) (holding
that police are not limited to searching the “most promising
place” if probable cause exists to search other locations). The
state, however, does not renew its severability argument
made in the trial court—that any overbroad provisions of
the warrant are severable and, thus, that the warrant can
be read to allow only the search of defendant’s Samsung cell
phones. Accordingly, we do not address whether a search
of only one or both Samsung cell phones was supported by
probable cause and can be severed from the overall warrant,
but rather we consider whether the warrant as a whole was
overbroad.
Defendant raises a number of arguments in response.
Primarily, defendant argues that the trial court did not err
because no probable cause existed for devices other than the
HP laptop and—possibly—a single Samsung cell phone, but
the warrant authorized a search of “any” device that police
found, without specific reason to believe that defendant
possessed those devices or that evidence would be found on
them. As explained below, we conclude that the search war-
rant was overbroad because it authorized a search of devices
for which the affidavit did not establish probable cause. In
light of that conclusion, we do not address other bases for
affirmance proposed by defendant, including defendant’s
cross-assignment of error that probable cause did not exist
to search any of defendant’s devices, including defendant’s
Samsung cell phone.
We review a challenge to the validity of a search
warrant for legal error. Burnham, 287 Or App at 662. Search
warrants are presumptively valid, and the defendant bears
the burden of proof to establish by a preponderance of the
evidence that the warrant was defective. State v. Harp, 299
Or 1, 9, 697 P2d 548 (1985); State v. Van Osdol, 290 Or App
902, 907-08, 417 P3d 488 (2018).
Article I, section 9, provides, in part, that “no war-
rant shall issue but upon probable cause, supported by oath,
or affirmation, and particularly describing the place to be
searched, and the person or thing to be seized.” The par-
ticularity requirement incorporates two distinct concepts:
626 State v. Cannon
a requirement that warrants are sufficiently specific and a
prohibition against warrants that are overbroad. Friddle,
281 Or App at 137. Because defendant does not raise a chal-
lenge to the warrant’s specificity, our analysis focuses only
on the Article I, section 9, prohibition against overbreadth.
We have explained that the gravamen of an over-
breadth challenge is “an asserted lack of probable cause for
the invasion of interests in privacy in premises or items.”
Id. The probable cause assessment is, in turn, confined
by the facts asserted in the warrant application. Id.; see
also State v. Mansor, 363 Or 185, 212, 421 P3d 323 (2018)
(“[A warrant] must not authorize a search that is broader
than the supporting affidavit supplies probable cause to jus-
tify.” (Internal quotation marks omitted.)). In assessing the
adequacy of those facts, we are confined to the facts asserted
within the “four corners” of the affidavit and any reasonable
inferences that can be drawn from them. State v. Sagner,
12 Or App 459, 469, 506 P2d 510 (1973); see also State v.
Tropeano, 238 Or App 16, 19, 241 P3d 1184 (2010), rev den,
349 Or 655 (2011) (“To determine probable cause, the judge
may rely on facts asserted in the affidavit as well as rea-
sonable inferences to be drawn from them.”). Statements
in the affidavit that are derived from an officer’s training
and experience may also be considered, State v. Chamu-
Hernandez, 229 Or App 334, 341, 212 P3d 514, rev den, 347
Or 43 (2009); however, the officer’s knowledge must be con-
nected to the facts of a particular case and the knowledge
itself must be examined, State v. Daniels, 234 Or App 533,
541, 228 P3d 695, rev den, 349 Or 171 (2010). The affidavit is
to be construed in a commonsense, nontechnical, and real-
istic fashion. State v. Wilson, 178 Or App 163, 167, 35 P3d
1111 (2001).
As for the probable cause standard, we have previ-
ously explained that
“[p]robable cause exists when the facts, as set forth in the
affidavit, along with any reasonable inferences, could per-
mit a neutral and detached magistrate to determine that
seizable evidence probably would be found at the place to be
searched. The facts of the affidavit must therefore establish
a nexus between three things: (1) that a crime has been, or
Cite as 299 Or App 616 (2019) 627
is currently being, committed, and that (2) evidence of that
crime (3) will be found in the place to be searched.
“Whether that nexus has been established by the affi-
davit is judged by the standard of probable cause, i.e., more
likely than not, which is less than a certainty, but more
than a mere possibility.”
Van Osdol, 290 Or App at 907-08 (citations and internal
quotation marks omitted). Doubtful or marginal cases are
to be resolved in favor of the preference for warrants. State
v. Henderson, 341 Or 219, 225, 142 P3d 58 (2006).
As noted above, 299 Or App at 623 n 3, the trial
court concluded that the facts in the affidavit gave rise to
probable cause to search a single Samsung smart phone
that was visible from outside of the car when police went to
search it. That probable cause determination relied on facts
outside the affidavit; in the affidavit, Cummings averred
only that he had learned that defendant had a Samsung
smart phone and that the phone was in defendant’s car.
The court mistakenly relied on facts outside the affidavit in
making its probable cause determination. See Sagner, 12 Or
App at 469 (explaining that, in deciding whether a search
warrant is supported by probable cause, we are to consider
only those facts within the “four corners” of the affidavit).
However, under these circumstances, the trial court’s
misplaced reliance was immaterial. Whether Cummings knew
of a Samsung cell phone because he could see it from out-
side the car or because defendant’s parole officer told him
about its existence was irrelevant to the court’s analysis.
The court ultimately concluded that the warrant was over-
broad because it authorized the search of devices for which
the affidavit did not provide probable cause. The court also
rejected the state’s severability argument. On appeal, the
state argues that the warrant provided probable cause for
the search of all the devices, and it does not renew its sev-
erability argument. Thus, the question for us on appeal is
whether a reasonable magistrate could have concluded from
all of the circumstances set forth in the affidavit that child
pornography would probably exist on all of the devices enu-
merated in the warrant. That is, given the state’s arguments
on appeal, the trial court’s conclusion was correct unless
628 State v. Cannon
there was probable cause to search every one of the myr-
iad electronic devices that could have been found and seized
pursuant to the warrant. We agree with the trial court that
the warrant permitted police to search devices for which the
warrant did not provide probable cause. Accordingly, the
court correctly concluded that the warrant was overbroad
and thus invalid.
In two recent cases, we have rejected an argument
similar to the one that the state makes here—namely, that
the probable existence of evidence on one device gives rise to
probable cause to search a broad array of electronic devices.
See Burnham, 287 Or App 661; Friddle, 281 Or App 130. In
both Friddle and Burnham, we held that search warrants
were overbroad because they authorized searches of more
devices than were supported by probable cause. We find
those cases to be instructive here.
In Friddle, the defendant was suspected of assault-
ing his then-girlfriend, W. 281 Or App at 131. W told police
that the defendant had a home security system that likely
recorded a video of the assault and that the defendant could
access the footage from his cell phone. The defendant also
played the audio of the recording for the officer on his cell
phone. Id. at 132. Police sought and obtained a warrant that
authorized them to seize and analyze a broad array of the
defendant’s electronic devices. The averring officer stated in
his affidavit that, in his training and experience, “subjects
involved in criminal activity regularly use cellular tele-
phones * * * to record and store photos, audio recordings and
video recordings of their crimes.” Id. at 133. Police executed
the warrant and seized, among other things, 93 grams of
marijuana discovered in a gun safe large enough to store
electronic devices. Id. at 134. The defendant was charged
with unlawful possession and moved to suppress the mari-
juana, arguing that the warrant was overbroad because the
affidavit did not establish probable cause that evidence of
the assault would be found on any device other than the
recording system and one cell phone.
The state argued that the basis for probable cause to
search other devices was that the defendant could remotely
access and possibly destroy the video evidence from any
Cite as 299 Or App 616 (2019) 629
internet-capable device. Id. at 136-37. We first determined
that the only two possible bases in the affidavit for such an
inference were (1) the statement of officer training and expe-
rience and (2) the fact that the defendant could access (and
had accessed) the audio recording on one cell phone. Id. at
139-40. Regarding officer training and experience, we con-
cluded that the affiant’s basis of knowledge and the descrip-
tion of the “regular” behavior of criminal suspects was too
“generic” to supply anything more than a possibility that
evidence would be found on the defendant’s other personal
electronic devices. Id. at 140-41. Then, regarding the defen-
dant’s ability to remotely destroy the evidence, we declined
to address the state’s contention because, among other rea-
sons, it was too great an inferential leap to make from the
content of the affidavit. Id. at 142. We ultimately concluded
that, although the affidavit established probable cause to
seize and search the defendant’s cell phone and home secu-
rity system, the rest of the warrant’s authorization was
overbroad, and, thus, the trial court erred in denying the
defendant’s motion to suppress. Id.
We reached a similar conclusion in Burnham, 287
Or App at 665-66. There, the defendant was under investi-
gation for illegal hunting. The affidavit established that the
defendant had likely taken photos of the illegal game with
his phone and posted those photos to his Facebook page.
Police sought a warrant to seize and analyze a broad array
of the defendant’s electronic devices. Id. at 663. Following
the same analytical path employed in Friddle, we reasoned
that, at best, the affidavit established a possibility that the
photos had been transmitted from the defendant’s phone to
other devices, but that that possibility did not rise to the
level of probable cause to search each of the devices autho-
rized by the warrant. Accordingly, we again held that the
warrant was overbroad.
As our opinions in Friddle and Burnham make
clear, probable cause must exist for each device that a war-
rant authorizes to be searched. See also Mansor, 363 Or at
187 (“A warrant to search a computer or other digital device
for information related to a crime must be based on probable
cause to believe that such information will be found on the
device.”). In the case at bar, the state attempts to distinguish
630 State v. Cannon
Friddle and Burnham on the basis that the crimes under
investigation in those cases did not involve the use of elec-
tronic devices in the commission of the crimes. In contrast,
the state argues, in cases involving child pornography, as
here, the devices at issue are the tools by which the crime
was committed—they are the means by which the illegal
images are manufactured, stored, and transferred to others.
Thus, the state argues, our reasoning from Burnham and
Friddle does not apply. In making that argument, the state
relies on the following dicta from Burnham:
“[A]s in Friddle, the crime under investigation (illegal
hunting) was not one that depended upon or was committed
through the use of electronic devices. Thus, in both cases,
the only concrete factual link between the crimes under
investigation and the multiple electronic devices covered by
the warrant was the likely presence of incriminating dig-
ital data on specifically identified devices—here, a single
cellular phone.”
287 Or App at 665. The state argues that our holdings in
Burnham and Friddle are not controlling in child pornogra-
phy cases, where the crime under investigation “depended
on or was committed through the use of electronic devices.”
The state also argues that, here, Cummings’s statements
based on his training and experience provided the neces-
sary factual basis for concluding that evidence related to
child pornography crimes was likely to be found on every
device indicated in the search warrant.
We begin by declining the state’s invitation to craft
a categorical rule for searching multiple devices in child
pornography cases. The overbreadth of a search warrant
depends upon whether the search warrant itself, “as supple-
mented by any attached or incorporated supporting docu-
ments,” authorizes searches not supported by probable cause.
Friddle, 281 Or App at 137. We therefore must consider the
specific facts unique to each case to determine whether
probable cause existed. In some cases involving the search
of electronic devices, the nature of the crime under investi-
gation, in light of the facts averred in the affidavit, may lead
to the conclusion that probable cause supports the search of
multiple devices. In this case, however, as explained below,
the facts in the affidavit do not give rise to probable cause to
Cite as 299 Or App 616 (2019) 631
search the all-encompassing list of electronic devices speci-
fied in the warrant.
We next turn to the state’s argument regarding
Cummings’s statements based on training and experience.
The state argues that those statements provide the neces-
sary nexus between the nature of the crime, the evidence
sought, and the place to be searched, i.e., all of defendant’s
electronic devices. In regard to such statements, we must
“ensure that the officer’s knowledge is connected to the facts
of a particular case [and] we must also examine the knowl-
edge itself.” Friddle, 281 Or App at 140. Cummings stated
that, in his experience, people who are sexually attracted
to children will store illegal images “on their computer or
other digital storage device such as USB flash drive, thumb
drive, SD cards, Micro SD cards, Compact Disks[,] DVDs,
and cell phones.” (Emphasis added.) Cummings also averred
the following:
“I know, based upon my training and experience in
investigating Child Porn cases it is more common than
not for persons involved in possession and/or distribution
of child pornography to use mobile devices, such as cell
phones, laptop computers, or tablet computers to share or
receive their pornographic material. * * *
“I further know, based upon my training and experience
in investigating sex crimes that people involved in possess-
ing and distributing child pornography will more often
than not keep their pornographic material saved on their
smart cell phones, computers, laptops, tablet computers,
thumb drive, SD cards, or any other mobile devices they
have for easy access to.”
(Emphases added.) Those statements may provide a basis
for concluding that any single device owned by defendant
could possibly contain child pornography. 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.4 See Burnham, 287
4
As noted above, 299 Or App at 630, in some cases, the information in an
affidavit may give rise to probable cause to search a defined group of electronic
devices, each of which may contain the evidence or contraband that is the subject
of the search. See Villagran, 294 Or at 413 (noting that “the circumstances of a
632 State v. Cannon
Or App at 666 (stating that the affidavit failed to establish
that it was more likely than not that images had been trans-
mitted to all of the defendant’s electronic devices); Friddle,
281 Or App at 141 (stating that the affidavit did not address
“whether a suspect who has accessed and stored a recording
of an event on one personal electronic device * * * will do so
on all other devices”).
Cummings’s statements provided only that indi-
viduals who possess child pornography are more likely
than not to keep evidence on any of a variety of electronic
devices, such as a cell phone or “any other mobile devices,”
not that they will store images on every single device that
they own. Nor did the Cummings affidavit specifically tie
the broad group of all of defendant’s devices to any illegal
conduct. The only statements that attempted to do so were
based on general officer training and experience. Indeed,
the affidavit failed to establish that defendant even owned
any of the devices indicated in the warrant, other than the
single Samsung cell phone.5 As we concluded in Friddle and
Burnham, Article I, section 9, requires that probable cause
exist for each device authorized to be searched in a warrant.
See also Mansor, 363 Or at 187. Here, the affidavit did not
meet that requirement.
Certainly, the affidavit includes facts that justify
a suspicion that defendant possessed child pornography.
Those facts include defendant’s prior criminal history, the
existence of lewd images on the HP laptop, defendant’s sus-
picious conduct at Walmart that may have involved a cell
case may give rise to probable cause to search several different locations at the
same time”; “[t]he nature of ‘probable cause’ is not such that if it is used to support
a search at one location it is necessarily exhausted as to other potential search
sites”); see also Mansor, 363 Or at 207 (“The warrant was sufficiently particular
in its description of the [four] computers to be seized and the grounds for believing
that evidence related to the criminal investigation was likely to be found on one
or more of them to meet the particularity requirement of Article I, section 9, with
respect to the seizure of the computers.”). In this case, however, as described in
the text, the information in the affidavit provides no reason to believe that there
likely will be evidence or contraband on the all-encompassing group of devices
described in the warrant. We recognize that electronic information easily can be
shared between or among devices through linked devices, cloud computing, and
other electronic sharing systems. We do not reach the issues raised by such facts
as they were not presented in the affidavit.
5
As noted, defendant no longer owned the HP laptop at the time of the search.
Cite as 299 Or App 616 (2019) 633
phone, and the fact that defendant had violated the terms of
his release by owning at least two devices that he was pro-
hibited from owning. Nevertheless, as explained above, the
warrant was not supported by probable cause because the
affidavit did not provide a factual basis from which a rea-
sonable magistrate could conclude that it was probable that
evidence would be found on every CD, DVD, gaming system,
thumb drive, micro-SD card, and other similar device owned
or possessed by defendant. Because the warrant permitted
a search broader than was supported by probable cause, the
warrant was overbroad in violation of Article I, section 9,
and the trial court properly granted defendant’s motion to
suppress. Accordingly, we affirm.
Affirmed.