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New Overbreadth Opinion (Seizing Too Many Electronic Devices)

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by: Ryan Scott • September 7, 2017 • no comments

Basing its decision on the analysis of State v. Friddle, the Court of Appeals issued a very good opinion today in State v. Burnham.

Key quote:

From the affidavit, a magistrate could infer that, because defendant’s cellular phone was used to take incriminating photographs—and defendant posted those photos on his Facebook page—there was a possibility that the photos had been transmitted to at least some of his other electronic devices. Yet, the contents of the affidavit failed to establish that is was more likely than not that such transmission had occurred with respect to all of his devices. See id. at 138 (“ ‘[T]he standard of probability requires the conclusion that it is more likely than not that the objects of the search will be found at the specified location.’ ” (Quoting State v. Williams, 270 Or App 721, 725, 349 P3d 616 (2015) (emphasis in Friddle).)). Thus, as in Friddle, because the affidavit contains no specific information to support an inference that data existing on one device would have been transmitted to other devices belonging to defendant, the affidavit was insufficient to support probable cause to examine those other devices.