State v. Mansor

• Decision Date: 28 June 2018
• Docket Number: CC C111376CR (SC S064382)
• Citation: 363 Or. 185,421 P.3d 323
• Parties: STATE of Oregon, Petitioner on Review, v. Kaliq Michael MANSOR, Respondent on Review.
• Court: Oregon Supreme Court

363 Or. 185

421 P.3d 323

STATE of Oregon, Petitioner on Review,

v.Kaliq Michael MANSOR, Respondent on Review.

CC C111376CR (SC S064382)

Supreme Court of Oregon.

Argued and submitted June 15, 2017.

June 28, 2018

Peenesh Shah, Assistant Attorney General, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Joshua B. Crowther, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for the respondent on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, Duncan, and Nelson, Justices.^**

BALMER, C. J.

In this case, we consider defendant's challenge under Article I, section 9, of the Oregon Constitution, to a warrant that authorized the search, seizure, and examination of his computer. Police investigated the injury of defendant's infant son while in defendant's care on June 12, 2011. The infant later died at the hospital. Defendant told the police that his son had struggled to breathe and that he had used his computer to look online for first aid advice before calling 9-1-1. For that and other reasons, police seized and then searched defendant's computer as part of their investigation. The forensic examination of the computer found internet search history shortly before the 9-1-1 call that was generally consistent with defendant's statements, but the examination also revealed that defendant had visited websites and entered search terms related to the abuse of infants several times in the months and weeks prior to the infant's death. The trial court denied defendant's motion to suppress the latter evidence, and defendant was convicted of murder and other crimes. The Court of Appeals reversed the convictions, concluding that the warrant authorizing the search of the computer violated the particularity requirement of Article I, section 9, because it permitted the examination of everything on defendant's computer. State v. Mansor , 279 Or. App. 778, 801, 381 P.3d 930 (2016). We allowed the state's petition for review of that decision and now affirm, although our analysis differs in some respects from that of the Court of Appeals.

For the reasons discussed below, we conclude that the application of Article I, section 9, to warranted searches of personal electronic devices requires a test that protects an individual's right to be free from unreasonable searches and seizures while also recognizing the government's lawful authority to obtain evidence in criminal investigations, including through searches of digital data. 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. To satisfy the particularity requirement of Article I, section 9, the warrant must identify, as specifically as reasonably possible in the circumstances, the information to be searched for, including, if available and relevant, the time period during which the information was created, accessed, or otherwise used. We acknowledge that, for practical reasons, searches of computers are often comprehensive and therefore are likely to uncover information that goes beyond the probable cause basis for the warrant. In light of that fact, to protect the right to privacy and to avoid permitting the digital equivalent of general warrants, we also hold that Article I, section 9, prevents the state from using evidence found in a computer search unless a valid warrant authorized the search for that particular evidence, or it is admissible under an exception to the warrant requirement.

In this case, police had probable cause to believe that defendant's computer would contain information regarding defendant's internet searches shortly before his 9-1-1 call. We refer to that information as "the June 12 internet search history." Defendant moved to suppress all of the information found through the forensic examination of the computer, which, as noted, included the evidence of child abuse and other crimes dating from weeks and months before the 9-1-1 call, as well as the June 12 internet search history. The trial court found that the police lacked probable cause to search the computer for any information beyond the June 12 internet search history. Nevertheless, the trial court denied defendant's motion to suppress, and virtually all of the relevant forensic evidence was admitted at trial. That was error. In our view, the warrant was sufficiently particular to permit a search of the computer; however, the trial court erred in admitting the proffered evidence that was obtained as a result of the forensic examination, because, as we read the warrant, it authorized the police to search only for the June 12 internet search history. Accordingly, we conclude that defendant's motion to suppress should have been granted in part and denied in part. Because that error was not harmless, we affirm the Court of Appeals' decision reversing defendant's convictions and remand the case to the trial court.

I. FACTS AND PROCEEDINGS BELOW

On June 12, 2011, defendant called 9-1-1 at 2:22 p.m. and reported that his 11-week-old son, B, had stopped breathing. After an ambulance took the infant to the hospital, Detective Rookhuyzen of the Washington County Sheriff's Office child abuse unit interviewed defendant at his home. On the basis of information learned in that interview and a pediatrician's examination of B at the hospital, Rookhuyzen applied for and obtained the warrant which defendant now challenges.

Rookhuyzen prepared a seven-page affidavit in support of his warrant application. The Court of Appeals summarized the affidavit's contents, which recounted Rookhuyzen's interactions with defendant and observations of the home:

"At the beginning of the interview, Rookhuyzen noted that defendant was ‘non-emotive’—which, in Rookhuyzen's training and experience, was ‘highly unusual’ in such circumstances because ‘[p]arents are usually crying, sobbing, and exhibiting signs of sadness or anxiety.’ Defendant told Rookhuyzen that he had been home alone with B and his twin brother, while his wife was working. According to defendant, as he had been feeding B a mixture of formula and liquid vitamins, the mixture had started to come out of the baby's nose and the baby had started coughing, so defendant had turned him over, shaken him, and ‘smacked’ him on the back. The baby's eyes became ‘fixed’ and ‘droopy,’ and his breathing became ‘very much labored.’ Defendant told Rookhuyzen that he then shook B more, and the baby began going ‘a minute or two between breaths.’

"Defendant did not call 9-1-1 at that point. Instead, he told Rookhuyzen, he ‘went online’ on a computer in the baby's room to conduct research about what he should do. When, after 15 minutes, the baby's condition did not improve, defendant called 9-1-1.

"Defendant did not call his wife during that period—and, indeed, had not attempted to contact her by the time Rookhuyzen began to interview him. In Rookhuyzen's experience, that was ‘extremely unusual’: ‘[W]ith these kind of incidents, spouses want to call each other instantly, even before speaking with law enforcement.’

"Rookhuyzen's affidavit further recounted that, at the hospital, B was examined by a pediatrician, Dr. Lindsay, who determined that the baby had no brain activity and would die soon. Lindsay further determined, inter alia , that the baby had experienced head trauma resulting in a skull fracture, bi-lateral retinal hemorrhages, and an ‘old rib fracture.’ In Lindsay's opinion, defendant's account was not consistent with the baby's condition, and he ultimately rendered a diagnosis of ‘shaken baby syndrome ’ as a result of intentionally inflicted abuse.

"*** Further, as specifically pertinent to the lawfulness of the seizure and search of defendant's computers, the affidavit included the following averment:

" ‘I know based upon my training and experience that computers can be connected to the internet to find information using computer software that browse internet sites for information. Internet search engine sites such as Google and Yahoo! are often used to search the internet for information related to a user's requests. I know that the computer will retain a history of internet sites visited and the search terms used on the internet. I know that to retain the integrity of a computer's memory and how the system was used, the computer needs to be searched in a laboratory and carefully examined by a trained computer forensic examiner in order to ensure that the data is not corrupted, damaged, or otherwise changed from the time when the machine was seized. [Defendant] told me that he searched the internet between the time he noticed [B] was having difficulty breathing and the time he called emergency dispatch. He told me that he was using a computer to search the internet for advice on what he should do. When I was in the residence, I saw two laptop computers and two desktop computers. [Defendant] did not specify which computer he was using just before he called 9-1-1.’

"The affidavit also included a detailed description of defendant's residence. Finally, in a section titled ‘Conclusion,’ the affidavit stated Rookhuyzen's belief that there was probable cause to seize and search 11 types of evidence, including ‘[t]wo laptop computers in the residence’ and ‘[t]wo desktop computer towers located in the office/baby room.’ "

Mansor , 279 Or. App. at 780-81, 381 P.3d 930 (brackets in Mansor ; footnotes omitted).

A circuit court judge signed the search warrant that evening. The search warrant instructed executing officers to "seize and search and forensically examine the following objects: See attachment A." (Emphasis omitted.) Attachment A was captioned "items to be searched for, to be seized, and to be analyzed." It repeated...