State v. Bock
| Decision Date | 31 March 2021 |
| Docket Number | A169480 |
| Citation | 485 P.3d 931,310 Or.App. 329 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Corey Alan BOCK, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.
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 Lagesen, Presiding Judge, and Kamins, Judge, and Kistler, Senior Judge.
We are once again confronted with a question about the scope and mechanics of the search of a cell phone. Based in part on evidence obtained from a warranted search of his cell phone, defendant was convicted of three counts of attempted aggravated murder with a firearm, ORS 161.405(2)(a), ORS 163.095, and ORS 161.610 (Counts 1, 2, and 3); attempted murder with a firearm, ORS 161.405 (2)(a), ORS 163.115, and ORS 161.610 (Count 4); assault in the second degree, ORS 163.175 (Count 5); burglary in the first degree, ORS 164.225 (Count 6); felon in possession of a firearm, ORS 166.270 (Count 7); and interfering with a peace officer, ORS 166.247 (Count 8). Defendant makes eight assignments of error, only six of which we discuss in detail.1 In his first and second assignments, defendant argues that the trial court erred in denying his motions to suppress evidence because the warrant authorizing a search of his cell phone violated the particularity requirement of Article I, section 9, of the Oregon Constitution. In his third and fourth assignments, defendant argues that the trial court erred in providing instructions that would allow the jury to assess self-defense from the victim's perspective. And finally, in his fifth and sixth assignments, defendant argues that the trial court erred in instructing the jury that it could return nonunanimous verdicts and by accepting nonunanimous verdicts on Counts 2, 3, and 5.
We conclude that the trial court erred in all three respects. Accordingly, we reverse and remand all of defendant's convictions apart from Counts 6 and 8, burglary in the first degree and interference with a peace officer, which were unaffected by the errors.
Because much of our decision involves review of the denial of a motion to suppress, we state the facts as found expressly or implicitly by the trial court. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We also supplement additional procedural information as necessary for review of other issues. Substantively, we review a trial court's legal conclusions in denying a motion to suppress for errors of law. State v. Stephens , 184 Or. App. 556, 560, 56 P.3d 950 (2002), rev. den. , 335 Or. 195, 64 P.3d 576 (2003). Likewise, we review jury instructions for errors of law. State v. Poitra , 261 Or. App. 818, 820, 323 P.3d 563 (2014).
On May 27, 2017, the victim was returning home with his 12-year-old daughter when he was attacked in his driveway by two men, defendant and Onofre. Over the course of the attack, the victim was punched several times and shot at when he attempted to flee. Ultimately, the victim and his daughter were able to get inside the victim's home safely and fend off the attackers until police arrived.
After arresting defendant and Onofre, police searched the vehicle that the two men had driven to the victim's home and found a cell phone. Believing that the cell phone might contain evidence relevant to the investigation, police obtained a warrant to search the device for four categories of information:
The search uncovered a photo that the state sought to introduce at trial. The photo depicted a firearm resembling one that police found discarded near the crime scene. Defendant objected to the introduction of the photo, arguing that the warrant violated the particularity requirement of Article I, section 9, of the Oregon Constitution. The trial court denied the motion, concluding that the warrant was sufficiently particular.
On appeal, defendant assigns error to the trial court's decision. He argues that the gun photo should have been suppressed because neither of the two search commands encompassing the gun photo—the command to search for evidence of the owner or user of the device or the command to search for any evidence of the crimes under investigation—satisfies Article I, section 9 ’s particularity requirement.2
Article I, section 9, of the Oregon Constitution provides, in relevant part, that a search warrant must "particularly describ[e] the place to be searched, and the person or thing to be seized." The framers adopted the particularity requirement to prohibit the use of "general warrants" like those employed by the English colonial government that give the bearer "an unlimited authority to search and seize." State v. Carter , 342 Or. 39, 43-44, 147 P.3d 1151 (2006). Particularity is made up of two distinct components: specificity and overbreadth. State v. Friddle , 281 Or. App. 130, 137, 381 P.3d 979 (2016). A warrant must be specific enough to allow an officer, with reasonable effort, to identify the place to be searched and the items to be seized. State v. Blackburn/Barber , 266 Or. 28, 35, 511 P.2d 381 (1973). The warrant also must not authorize a search broader than its supporting materials provide probable cause to justify. State v. Reid , 319 Or. 65, 71, 872 P.2d 416 (1994).
In State v. Mansor , 363 Or. 185, 214, 421 P.3d 323 (2018), the Oregon Supreme Court recognized that some of the unique characteristics of electronic devices have implications for how these principles apply during electronic searches. Unlike in the physical world where different storage spaces are used for particular purposes, inside computers "there is ‘no way to know ahead of time where * * * a particular file or piece of information may be located.’ " Id. (quoting Orin S. Kerr, Digital Evidence and the New Criminal Procedure , 105 Colum L Rev 279, 303 (2005) ) (omission in original). Accordingly, rather than identifying where a particular item will be located on a computer or what form it will take, Article I, section 9, requires an electronic search warrant to "describe, with as much specificity as reasonably possible under the circumstances, * * * the information related to the alleged criminal conduct which there is probable cause to believe will be found on the computer." Id. at 216, 421 P.3d 323 (emphasis in original). Additionally, when it is possible to limit the material searched to a particular time period, that period should also be set out in the warrant. Id. at 218, 421 P.3d 323.
Beginning with the command to search for evidence of the owner or user of the cell phone, defendant argues that the warrant is insufficiently specific because it does not include a temporal limitation on the material that is subject to seizure. The state rejoins that no temporal limitation is necessary because evidence of a device's ownership is not naturally constrained to any particular period of time. The command was, in the state's view, as specific as possible given the number of different forms of evidence of an electronic device's ownership.
Regardless of whether the command to search for evidence of the owner or user of the device included a temporal limitation on the material subject to seizure, we conclude that the search command violates the particularity requirement. Any interpretation of the search command broad enough to permit the use of any material discovered on the cell phone relevant to establish the device owner or user's identity is impermissibly nonspecific. A warrant without clear limitations on the material subject to search and seizure requires the executing officer to employ discretion in deciding what to search or seize. See State v. Ingram , 313 Or. 139, 145, 831 P.2d 674 (1992) (). That, in turn, risks "invad[ing] privacy interests not intended by the magistrate to be invaded and *** conduct[ing] searches not supported by probable cause." Id.
In practice, a warrant that authorizes seizure of any item on a cell phone that might later serve as circumstantial evidence of the device owner or user is tantamount to a general warrant. As the state acknowledges, "[t]he ways in which a device might be connected to a specific user are too varied to anticipate" and could include "email accounts stored on the device belong[ing] to a particular person, * * * a certain person's social media or financial accounts, * * * photographs of a particular person and his family, or * * * any other pattern or usage uniquely attributable to a particular person." Indeed, there is little information on the device that the state could not use to identify the defendant given the right circumstances and background information. Under such circumstances, the officer performing the search has the discretion to rummage freely throughout the device and seize nearly everything—the exact practice that the particularity requirement was adopted to prohibit. Accordingly, we conclude that the command to search for evidence of the owner or user of the cell phone is invalid.
Next, we turn to the fourth command authorizing a search for all evidence of the various offenses that...
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