State v. Bray

• Decision Date: 05 July 2018
• Docket Number: CC 11FE1078,SC S064843 (Control, S064846))
• Citation: 422 P.3d 250,363 Or. 226
• Parties: STATE of Oregon, Petitioner on Review, v. Thomas Harry BRAY, Respondent on Review. State of Oregon, Respondent on Review, v. Thomas Harry Bray, Petitioner on Review.
• Court: Oregon Supreme Court

363 Or. 226

422 P.3d 250

STATE of Oregon, Petitioner on Review,

v.Thomas Harry BRAY, Respondent on Review.

State of Oregon, Respondent on Review,

v.Thomas Harry Bray, Petitioner on Review.

CC 11FE1078

SC S064843 (Control, S064846))

Supreme Court of Oregon.

Argued and submitted November 7, 2017.

July 5, 2018

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review/ respondent on review State of Oregon. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Kendra M. Matthews, Boise Matthews LLP, Portland, argued the cause and filed the briefs for petitioner on review/ respondent on review Thomas Harry Bray.

Erin K. Olson, Law Office of Erin K. Olson, Portland, filed the brief on behalf of amicus curiae the National Center for Victims of Crime. Margaret Garvin, National Crime Victim Law Institute at Lewis & Clark Law School, Portland, filed the brief on behalf of amicus curiae National Crime Victim Law Institute. Also on the brief was Amy C. Liu. Rosemary W. Brewer, Oregon Crime Victims Law Center, Portland, filed the brief on behalf of amici curiae Crime Victim J.B. and the Oregon Crime Victims Law Center.

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

WALTERS, C. J.

In this criminal case, the factual issue at trial was whether, as the state contended, defendant forcibly raped, sodomized, strangled and assaulted J, or, as defendant claimed, J’s injuries resulted from consensual "rough sex." A preliminary legal issue was whether defendant could compel the production of evidence that he viewed as supportive of his position. After the encounter with defendant, J had used her computer to conduct a Google search and make journal entries about defendant and the encounter. Defendant sought to compel the production of that digital data: Defendant filed a motion to compel the state to use its authority under the federal Stored Communications Act (the SCA) to obtain J’s records from Google, and he issued a subpoena duces tecum requiring J to appear at trial and bring her computer with her.

The trial court granted defendant’s motion to compel, and, after some time and a number of hearings, the state eventually sent Google a subpoena for the records. Google did not comply; it took the position that a search warrant was required. Defendant, frustrated with what he viewed as the state’s defiance of the court’s order and refusal to do what was necessary to get the Google information, filed a motion to dismiss the charges against him. The court, unhappy with the state’s delay and "resistance or reluctance" to comply with its order, but satisfied that the state had done all that the court could direct it to do, informed the parties that it would not require the state to obtain a search warrant and denied defendant’s motion to dismiss.

The court then conducted a bench trial. J testified, but she did not produce her computer in response to defendant’s subpoena. On cross-examination, J told the court that she had "flattened" her computer and that it therefore no longer contained digital information. The court denied defendant’s motion for an order requiring J to bring the computer to court for a forensic examination and, at the trial’s completion, found defendant guilty.

Defendant appealed his judgment of conviction. State v. Bray , 281 Or. App. 584, 586, 383 P.3d 883 (2016).

The Court of Appeals affirmed the trial court’s denial of "defendant’s motion to compel the state to obtain J’s internet information" and its denial of defendant’s motion to dismiss. Id. at 595, 383 P.3d 883. However, it determined that the trial court erred in denying defendant’s motion to enforce the subpoena duces tecum , vacated defendant’s convictions, and remanded to the trial court for further proceedings. Id. at 617-18, 383 P.3d 883.

Defendant filed a petition for review in this court, challenging the Court of Appeals' rulings with respect to the Google records and the state’s failure to obtain them. The state also filed a petition for review, challenging the Court of Appeals' ruling with respect to defendant’s subpoena and its conclusion that defendant’s convictions must be vacated and the case remanded. We allowed both petitions, and, for the reasons that follow, we affirm the decision of the Court of Appeals.

I. DEFENDANT'S ISSUES ON REVIEW

A. Whether the trial court erred in refusing to order the state to take further action to obtain J’s internet information from Google

We begin with the issues that defendant raises on review and, in particular, his argument that the trial court erred in refusing to order the state to take further action to obtain J’s internet information from Google. To address that issue, a rudimentary understanding of the provisions of the SCA is necessary.

The SCA is a federal law that was enacted in 1986 as part of the Electronic Communications Privacy Act to address the privacy of stored internet communications. See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It , 72 Geo. Wash. L. Rev. 1208, 1208-13 (2004) (discussing purpose of the SCA). In simplified terms and subject to exceptions, section 2702 of the SCA prohibits providers of remote computing service, such as Google, from knowingly divulging to any person or entity the contents of any communication carried or maintained in that service. 18 USC § 2702(a)(2).¹ The exception that is relevant here is the exception that permits a provider to divulge the contents of a communication as authorized in section 2703. 18 USC § 2702(b)(2). Pursuant to section 2703, governmental entities may require the disclosure of such communication by specified means. 18 USC § 2703(b)(1).² Those means include (with conditions) a warrant, an administrative, grand jury, or trial subpoena, or, under subsection (d), a court order for disclosure. 18 USC § 2703(b)(1). A subsection (d) order for disclosure (SCA order) may be issued "only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the" information sought is "relevant and material to an ongoing criminal investigation." 18 USC § 2703(d). A person like defendant, who is a nongovernmental entity, cannot require a remote computing service, such as Google, to divulge the contents of communications. See 18 USC § 2703(b) (providing government authority to require disclosure but not providing similar authority to nongovernmental entity).

When defendant began his efforts to obtain J’s Google records, he was apparently unaware of the SCA and its privacy protections. Defendant sent his own subpoena duces tecum to Google, but Google refused to honor it, citing the SCA. Defendant then sought the court’s assistance. Defendant argued that, although Google had rebuffed his subpoena for the records of J’s search, it would be required to produce that information if the state sought it. Defendant filed a motion to compel, asking the court to order the state to do what he could not. On December 20, 2011, after a hearing, the court determined that J’s Google searches were potentially exculpatory and ordered the state to "make whatever effort the federal statute allows them to make" to obtain them (December 20 order). The court’s thinking was that the state "has little interest in ignoring or avoiding exculpatory evidence" which might affect the result in the case, and that it was appropriate "for this court to order the State of Oregon to use its power under [the] federal statute to obtain the information."

After significant delay, the state issued its own subpoena.³ Google again demurred. Google informed the state that it would not produce the records that the state sought without a search warrant requiring their production, and, some weeks later, the state so informed defendant and the court. By that time, trial was fast approaching, and defendant told the court that he would be filing a motion to dismiss the charges against him based on prosecutorial misconduct. Defendant took the position that, to comply with the court’s December 20 order, the state was required to apply to the court for a search warrant or an SCA order. The state took the position that it could not and would not make the averments necessary for such an application and that the court could not and should not force it to do so. The court indicated that it would issue a search warrant if the state applied for one, but it did not enter an order requiring the state to take that action.

When defendant did in fact file a motion to dismiss, the trial court denied it, giving two interrelated reasons for its decision. First, the court explained, the state may have done all that the court could require it to do when it issued a subpoena for J’s Google records. Although the court disagreed with the district attorney’s position that, to apply for a search warrant, he would have to aver that he had probable cause to believe that a search would produce "evidence of a crime"—explaining that "a search warrant can be issued for evidence or information concerning the commission of a crime"—the court was not convinced that it could order the district attorney to make averments that he was not willing to make.

Second, the court explained, it considered the Google searches to be important and exculpatory, but it did not consider them to be the "heart of the case." The "heart of the case," in the court’s view, was the "physical evidence, [J]’s statements to the police, [J]’s testimony, which is subject to cross-examination, and * * * defendant’s testimony or other evidence if he chooses to testify or present it." Moreover, the court expanded, the evidence that J conducted a Google search would be presented, and J could be thoroughly cross-examined about it. The court opined that that evidence was "probably more damning or more critical than the exact...