State v. Cazee
| Jurisdiction | Oregon |
| Court | Oregon Court of Appeals |
| Citation | 482 P.3d 140,308 Or.App. 748 |
| Docket Number | A167047 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kirk Richard CAZEE, Defendant-Appellant. |
| Decision Date | 27 January 2021 |
Andy Simrin argued the cause for appellant. Also on the brief was Andy Simrin PC.
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 Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
In 2016 and 2017, the Clatsop County Sheriff's Department investigated multiple reports of a peeping tom watching young women or teenaged girls through their windows at night, including while they engaged in sexual activity. All of the incidents occurred in Surf Pines, a gated residential community on the coast. Defendant was arrested in February 2017 after one of the victims, who had installed a surveillance system, reported someone on her property. At the time of his arrest, defendant was carrying binoculars, toilet paper, a flashlight, and a cell phone. A detective obtained a warrant to search the cell phone, which led to the discovery of over 7,200 photographs and 70 videos, including some depicting teenaged girls engaged in sexual activity. Using the evidence from the cell phone, further warrants were obtained, which led to the seizure of further incriminating evidence.
Defendant was indicted on numerous counts. Before trial, he moved to suppress all of the aforementioned evidence, arguing that the warrants were not supported by probable cause. The trial court denied the motions. A jury subsequently found defendant guilty of five counts of first-degree invasion of personal privacy, ORS 163.701 ; three counts of second-degree invasion of personal privacy, ORS 163.700 ; five counts of stalking, ORS 163.732 ; four counts of second-degree criminal trespass, ORS 164.245 ; and six counts of using a child in a display of sexually explicit conduct, ORS 163.670. Defendant had moved for judgments of acquittal on one trespass count and all six display counts, but the trial court denied those motions.
On appeal of the judgment of conviction, defendant raises four assignments of error. He contends that the trial court erred in denying, respectively, (1) his motion to suppress the photographs and videos found on his cell phone, (2) his motion to suppress the evidence seized from his residence and camper, (3) his motion for judgment of acquittal on the display counts, and (4) his motion for judgment of acquittal on one trespass count. We reject the fourth assignment of error, regarding the trespass count, without written discussion. For the reasons that follow, however, we agree with defendant that the trial court erred in denying his motions to suppress and his motion for judgment of acquittal on the display counts. Accordingly, we reverse and remand.
On February 27, 2017, Detective Humphrey obtained a warrant to search defendant's cell phone for evidence of second-degree criminal trespass, second-degree invasion of personal privacy, and stalking, limited to data that had been created, accessed, or deleted since January 2, 2016. Because we are called upon to review the validity of that warrant, we rely on the uncontroverted facts recited in the supporting affidavit. State v. Goodman , 328 Or. 318, 320, 325, 975 P.2d 458 (1999).
Residents in the gated community of Surf Pines reported multiple peeping incidents to the sheriff's department in 2016 and early 2017. On January 2, 2016, a report was received that a man of heavy build wearing a dark hooded shirt had been watching a 17-year-old girl and her boyfriend on a bed through a residence window at 1:30 a.m. The girl thought that the man had been at the window for as long as 10 minutes. Later that year, at a different Surf Pines residence, peeping incidents were reported on September 4, November 4, and November 26. In December 2016, yet another Surf Pines resident, 22-year-old M, began to sense that someone was looking in her windows. On January 16, 2017, M reported seeing someone or something in her yard, and, on January 25, 2017, M reported seeing a figure outside her bedroom while she and her boyfriend were "being intimate." After those incidents, M installed a surveillance system.
In late January 2017, Humphrey joined the investigation of the Surf Pines peeping incidents. On February 1, 2017, Humphrey viewed surveillance footage showing a person looking through a residence window for about 28 seconds. The person was wearing a hooded coat with a distinctive loop on the back of the hood. He covered his face with his hand while passing through a lighted area and hid when vehicle headlights came into view. On February 12, 2017, Watson, a resident of the same property where an incident had been reported on January 2, 2016, encountered an unknown man outside the house. Watson described the man as wearing a camouflage hunting jacket and having a full beard that was gray except for a black accent near the upper lip. The man claimed to be looking for someone and left without incident once confronted.
On February 16, 2017, around 10:35 p.m., M reported seeing a person on her property on her surveillance system's live feed. Two officers responded, eventually encountering defendant. Defendant lives in Surf Pines. Defendant's jacket matched the jacket of the person seen in the surveillance video that Humphrey viewed on February 1, including the distinctive loop on the back of the hood, and his physical appearance also matched. Upon reviewing M's surveillance video from that night (February 16), defendant also appeared to be the person in M's video. Defendant was arrested for criminal trespassing. At the time of arrest, he had binoculars concealed under his jacket, toilet paper in a plastic bag, a flashlight, and a cell phone. Defendant denied trespassing and stated that he walks the trails at night, carries binoculars to look at wildlife, and carries toilet paper in case he needs to go to the bathroom while walking. Defendant refused to consent to a search of his cell phone.
The next day, Watson viewed a six-photo lineup. Upon seeing defendant's photo, he stated that, "so far out of all of them, that'd be the closest." Watson indicated that there had been limited light when he confronted the man outside the house but that he had focused on the facial area and specifically the man's beard.
Based on those facts, Humphrey subjectively believed that there was probable cause to believe that defendant had criminally trespassed on multiple occasions for the purpose of viewing people in the privacy of their homes and had viewed people engaged in sexual activities without their knowledge for his own sexual gratification.
As relevant here, Humphrey further believed that defendant's cell phone data might reveal that he had recorded people without their knowledge. As described in the affidavit, Humphrey has been a police officer for 13 years. From his training and experience (described in the affidavit), Humphrey has learned that "people involved in criminal behaviors use computers and other personal electronic devices, such as cellular telephones and tablet computers, to aid in the commission of their crimes." More specifically, he has learned "that people engaged in criminal sexual behaviors use electronic devices to collect and retain media related to their crimes such as images or videos of their victims" and "that people who practice voyeurism often use optical magnifiers such as binoculars to gain a visual advantage in viewing other people in the privacy of their own homes" and "often use their personal electronic mobile devices to record, view, and store images and videos of the people they watch."
The magistrate issued the requested warrant to search defendant's cell phone for "images and videos," including depictions of people engaged in sexual behavior and other private acts and depictions of people being viewed or recorded without their knowledge where they had a reasonable expectation of privacy.1
Upon execution of the warrant, more than 7,200 photographs and 70 videos were found on defendant's cell phone, some depicting teenaged girls engaged in sexual activity or in states of nudity.
Defendant was indicted on numerous counts. Before trial, he moved to suppress the evidence from his cell phone. The trial court denied the motion, stating:
Defendant proceeded to trial. A jury found him guilty of multiple counts of invasion of personal privacy, stalking, criminal trespass, and display, as previously described. He appeals the resulting judgment of conviction, first challenging the denial of his motion to suppress the photographs and videos found on his cell phone.
Article I, section 9, of the Oregon Constitution protects the right of the people to be free of unreasonable searches and seizures and requires warrants to issue only upon probable cause. Search warrants are presumptively valid. State v. Van Osdol , 290 Or. App. 902, 907, 417 P.3d 488 (2018). Defendant therefore bore the burden...
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