For two opinions that (mostly) reach the same conclusion, there are profound differences in the approaches taken by the COA and the Oregon Supreme Court. The following analysis is intended to highlight the practical differences in the two Mansor opinions, and why you should not assume that a cell phone or computer search warrant executed prior to June 28, 2018, is valid under the current interpretation of Article I, section 9.
The COA held that the warrant authorizing the seizure and forensic examination of Mansor’s computers was impermissibly overbroad. State v. Mansor, 279 Or App 778, 801, 381 P3d 930 (2016). Specifically, the court noted that the affidavit was not temporally limited to the day of the incident and nothing in the affidavit substantiated a likelihood that child abusers are likely to have engaged in prior internet searches pertaining to such conduct. Id. at 797, 802. And it did not confine the forensic examination to internet search history or emails (the data that there may have been probable cause to examine), so as to preclude examination of other files located in the hard drives for which there was not probable cause. Id. at 797, 802. Consequently, the failure to limit the scope of the warrant temporally and substantively resulted in a warrant that was not drawn “with as much specificity as possible under the circumstances.” Id. at 797-98, 802-803. For those reasons, the court held that the warrant was “invalid as impermissibly overbroad, rendering the forensic examination of the contents of [the] defendant’s computers unlawful under Article I, section 9.” Id. at 803.
The Oregon Supreme Court largely adopted the temporal limitation requirement proposed by the COA. Mansor, 363 Or at 218. (“And we agree with the reasoning in Wheeler and the cases cited there that when a time-based description of the information sought on a computer is relevant and available to the police, it ordinarily should be set out in the affidavit, and the warrant should include that description.”) However, it rejected – at some length – the idea that the search warrant needed to be confined to specific computer files (e.g., search history or e-mails or photographs/videos) . Rather, in order to satisfy the requirements of particularity, and to avoid an unconstitutional general warrant, the warrant must be specific as to exactly what is being searched for.
The Court first put forward Defendant’s definition of what “what” is.
- Defendant clarifies that that element does not necessarily mean the type of computer file, such as an email, text, or photograph. Rather, for the reasons discussed above regarding the nature of digital evidence, the “what” is a description of the information related to the alleged criminal conduct which there is probable cause to believe will be found on the computer.
Mansor, 363 Or at 216.
The Court subsequently adopted that approach to particularity.
- Rather, for the reasons discussed above regarding the nature of digital evidence, the “what” is a description of the information related to the alleged criminal conduct which there is probable cause to believe will be found on the computer.
Id at 216.
The Court then concluded as follows:
- To meet the particularity requirement of Article I, section 9, the warrant must identify, as specifically as reasonably possible in the circumstances, the information to be searched for, including, if relevant and available, the time period during which that information was created, accessed, or otherwise used.
Id at 218.
In other words, in lieu of an ex ante search protocol that would limit the search to particular files, particularity could only be satisfied as long as the warrant specified what the search could be for and provided probable cause for it. And the degree of required specificity was dependent on what was reasonable based on what was known at the time.
The practical difference between the two approaches is stark. The following example highlights the different requirements imposed by the different opinions.
Assume defendant is a gang member. Further, assume a particular firearm was used to kill the victim on July 1st. Assume also that the police are aware that the same firearm was used by members of that same gang on May 1st, but there is no evidence defendant used the gun on May 1st. Lastly, assume arguendo the affidavit provides probable cause that gang members were likely to used have texts and e-mails to discuss the transfer of the firearm from the gang members who used the firearm on May 1st to the defendant sometime prior to July 1st .
Under the COA’s analysis, the search warrant would have to have the following requirements:
- (1) A search of e-mails and texts (because the search is limited to specific computer files for which there is probable cause);
- (2) A temporal limitation from May 1st to July 1st.
Under this analysis, if the search then produces texts or e-mails that have nothing to do with the transfer of a firearm, but were generated between May 1 and July 1, such evidence falls within the scope of the warrant.
The Supreme Court analysis, however, would require the following:
- (1) A search of the entire phone for any evidence consistent with gang members discussing the transfer of the firearm;
- (2) A temporal limitation from May 1st to July 1st.
Under his analysis, any evidence (no matter where it is found) that is not covered by “gang members discussing the transfer of the firearm” would be considered nonresponsive to the search warrant.
Such nonresponsive information may have been obtained by a lawful search, but the Supreme Court has now held that the state is not permitted to use it at trial.
- Although such searches are lawful and appropriate, individual privacy interests preclude the state from benefiting from that necessity by being permitted to use that evidence at trial. We thus conclude that the state should not be permitted to use information obtained in a computer search if the warrant did not authorize the search for that information, unless some other warrant exception applies.
Mansor, 363 Or at 220-221.
Under the hypothetical above, if the search uncovers information – such as an e-mail between Defendant and a non-gang member, or a text between Defendant and a gang member about marijuana, i.e., things for which there was no probable cause nor any specific directive to search for – that evidence must be suppressed.
- In our view, the privacy interests underlying Article I, section 9, are best protected by recognizing a necessary trade-off when the state searches a computer that has been lawfully seized. Even a reasonable search authorized by a valid warrant necessarily may require examination of at least some information that is beyond the scope of the warrant. Such state searches raise the possibility of computer search warrants becoming the digital equivalent of general warrants and of sanctioning the “undue rummaging that the particularity requirement was enacted to preclude.” Mansor, 279 Or App at 803 (internal quotation marks omitted).
Mansor, 363 Or at 220-221.
The bottom line is that, under the new analysis, a warrant is far less likely to be facially overbroad, which means it is unlikely to be thrown out entirely. But it is far more likely that any "unexpected" evidence -- that is, stuff that the gov't did not know to look for or didn't have probable cause to look for -- will be unusable by the state. This is an altogether excellent trade-off in my opinion.
It also means there will be many opportunities to argue whether the warrant was specific enough, although that will arguably arise only in those cases were the evidence would not have been responsive to the warrant if it was more narrowly tailored. In other words, you'll only be arguing about whether the warrant could and should have been more specific if the evidence that is located is on the cusp of the event horizon.
Another consequence of the higher court’s new rule is that temporal limitations must necessarily be specific to the information that the warrant is seeking. Consequently, if there is a warrant in which there are different types of information for which there is probable cause, some of the information may require different temporal limitations. For example, evidence related to the transfer of the firearm would be limited to the last time the firearm was used by another gang member to the time it was used by the defendant, while information related to something else would be limited to when that "something else" occurred.