State v. Mansor

• Citation: 381 P.3d 930,279 Or.App. 778
• Decision Date: 27 July 2016
• Docket Number: A153124
• Parties: State of Oregon, Plaintiff–Respondent, v. Kaliq Michael Mansor, Defendant–Appellant.
• Court: Court of Appeals of Oregon

279 Or.App. 778

381 P.3d 930

State of Oregon, Plaintiff–Respondent,

v.Kaliq Michael Mansor, Defendant–Appellant.

A153124

Court of Appeals of Oregon.

Argued and submitted May 19, 2015.

July 27, 2016

Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Haselton, Senior Judge.^*

HASELTON, S.J.

Defendant, who was convicted of multiple offenses, including murder by abuse, ORS 163.115(1)(c), following the death of his infant son, appeals. Defendant contends that the trial court erred in (1) denying his motion to suppress material discovered as the result of a warranted search of his home computers, and (2) admitting evidence of a medical diagnosis of “abusive head trauma.”¹ As amplified below, we conclude that the warrant authorizing the seizure and forensic examination of defendant's home computers was impermissibly overbroad, violating the particularity requirement of Article I, section 9, of the Oregon Constitution. Accordingly, the trial court erred in denying defendant's motion to suppress, and, because that error was not harmless, we reverse and remand.²

Except as specifically noted, the circumstances material to our assessment of the lawfulness of the search of defendant's computers are undisputed. On the afternoon of June 12, 2011, at about 2:22 p.m., defendant made a 9–1–1 call to report that his 11–week–old son, B, had stopped breathing. Emergency medical personnel responded within minutes, followed shortly thereafter by Detective Rookhuyzen of the child abuse unit of the Washington County Sheriff's Office. After the baby had been taken by ambulance to the hospital, Rookhuyzen interviewed defendant.

Rookhuyzen ultimately applied for, and obtained, the warrant pursuant to which the challenged seizure and search of defendant's computers was undertaken. In his affidavit submitted in support of the warrant application, Rookhuyzen recounted the following:

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.³ 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.

After Dr. Lindsay's examination, and still on June 12, Rookhuyzen prepared an application for a search warrant to be executed at defendant's residence. In the affidavit in support of that application, Rookhuyzen, as noted, recited the circumstances just recounted. 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 911.”

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.”⁴

Along with his affidavit, Rookhuyzen prepared and submitted “ATTACHMENT ‘A,’ ” subcaptioned, “ITEMS TO BE SEARCHED FOR, TO BE SEIZED, AND TO BE ANALYZED” (Attachment A), which, on a single page, reiterated verbatim the list of 11 types of evidence set out in the “Conclusion” section of the affidavit. The text of Rookhuyzen's affidavit does not itself refer to Attachment A.

Finally, Rookhuyzen also prepared and submitted a one-page form of search warrant.

Under the heading “Premise described as:”, the warrant reiterated the description of defendant's residence from Rookhuyzen's affidavit, and, under the heading “You are to seize and search and forensically examine the following objects:”, the warrant stated simply and without elaboration: “See attachment A.” Thus, the warrant did not specify any protocol for the forensic examination of the computers, including prescribing temporal constraints on the material to be examined.

On the evening of June 12, the trial court issued the search warrant, and officers immediately executed the warrant, seizing, among other items, the four computers listed in Attachment A. Under the direction of detectives, a digital evidence forensic examiner then accessed and analyzed the data on the computers' hard drives. In searching defendant's desktop computer, as well as the other devices, the examiner began by focusing on internet searches done on June 12, 2011, that employed or referred to certain terms “specific to aiding an infant that was in trouble, references to calling 911, that sort of thing.”⁵ Those terms included “baby,” “dad,” and “abuse.”⁶ Ultimately, however, the examiner's search encompassed all data on the hard drives, including data dating back more than 10 years, long antedating B's birth.

With respect to the afternoon of June 12, the examination of the search history on defendant's personal desktop computer included Google searches by user “Kaliq” at 2:07 p.m. for “baby pulse no breathing” and at 2:14 p.m. for “baby not breathing, strong pulse.”

As noted, the forensic examination was not limited to the 15–minute period preceding defendant's 9–1–1 call on June 12, or even to the entirety of June 12. Consequently, the search of defendant's desktop computer disclosed at least ostensibly inculpatory material antedating June 12 relating to prior internet searches by a person logging in with the user name “Kaliq.” Specifically, the examination disclosed internet searches on: (1) April 19, 2011, for “infant abuse” and “infant abuse symptoms”; (2) April 30, for “signs of abused infant”; (3) May 19, for “signs of newborn abuse”; and (4) May 22, for “abused newborn symptoms” and “abused newborns.” Finally, the examination disclosed Google searches on June 9 for the terms “newborn abuse,” “abuser therapy,” “Oregon child abuse laws,” “father hates infant,” “afraid of abusing my baby,” “how do I deal with a screaming baby,” and “baby, swelling, back of head.”⁷ The examination also disclosed that, on June 9, the user had visited a website and clicked on a file titled “Can therapy help an abuser?”⁸

Even as the forensic examination of the computers was being undertaken, defendant was charged by indictment with multiple crimes, including two counts of murder by abuse, ORS 163.115(1)(c), one count of felony murder, ORS 163.115(1)(b), one count of first-degree assault, ORS 163.185, three counts of third-degree assault, ORS 163.165, and three counts of first-degree criminal mistreatment, ORS 163.205.

Defendant subsequently moved, under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, to suppress all evidence obtained from the seizure and search of the computers.⁹ In so moving, defendant contended, in part, that “the warrant authorizing the search was worded so broadly as to constitute a general...