Oregon Supreme Court - July 5, 2018

by: Rankin Johnson • July 17, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

• SUBPOENAS - Property and privacy of third parties

The trial court erred by failing to enforce a defense subpoena for the victim’s computer on the basis of privacy concerns. The trial court did not err by failing to compel the state to obtain data from Google. Reversed to enforce subpoena and for further proceedings.

Defendant was charged with rape. Defendant issued a subpoena, directed to Google, for the victim’s search history.

Google declined to provide responsive data, citing the federal Stored Communications Act ("SCA"). The SCA prohibits providers of remote computer services, such as Google, from divulging information. The statute contains exceptions for legal processes such as warrants and subpoenas issued by government entities.

Following Google’s refusal, defendant sought an order compelling the state to seek information from Google. The court found that the requested information was potentially exculpatory and directed the state to try to obtain it.

The state issued a subpoena, which Google declined to honor. Google took the position that a warrant was required. The state thereafter took the position that it could not make the averments necessary for a search warrant.

Defendant moved to dismiss based on the state’s failure to seek a search warrant. The court denied the motion, reasoning that it could not force the state to make the averments that would support a search warrant and that the evidence, while “important and exculpatory,” was not the “heart of the case.” Further, the court explained, the victim would testify about the Google searches, and that testimony was probably more important than the actual Google data.

The Supreme Court held that the trial court’s initial ruling was not before it. It upheld the second ruling, failing to require the state to obtain the data, because data held by Google was not in the state’s control and because, on the facts of this case, the evidence was not central to the defense such that there was a Constitutional right to obtain it.

For similar reasons, the trial court had not erred in failing to dismiss, notwithstanding the prosecutor’s defiance of the court’s orders; the defendant did not demonstrate either that the data could have been obtained if the prosecutor had acted promptly, or that the evidence would not be available on remand.

Defendant issued a subpoena for the victim’s computer or for a copy of its hard drive. Copies of the hard drive were created during parallel civil litigation, and one is in the trial court file.

The victim did not produce her computer in response to the subpoena. She had erased the computer’s hard drive because there had been media reports about her and she did not want to be hacked. Defendant moved to compel and offered evidence that an erased hard drive could yield data.

The trial court denied the motion to compel, observing that the victim’s private data would be observable by a forensic computer examiner. The Supreme Court held that a party is entitled to subpoena evidence and that the subpoena in this case should have been enforced.

State v. Bray 363 Or 226 (July 5, 2018) (Walters, J.)

• DUII - Predicate offenses

An out-of-state conviction that could not serve as a predicate conviction for felony DUII because it was obtained in violation of the right to counsel could nonetheless be used permanently to revoke the defendant’s driver’s license. Affirmed.

Under the Sixth Amendment, an uncounseled conviction can support a civil disability, but not a criminal penalty. Because a driver’s license revocation is a civil disability, the revocation in this case did not violate the Sixth Amendment. The defendant did not develop, and the court did not consider, a separate argument under the Oregon Constitution.

State v. Hamann 363 Or 246 (July 5, 2018) (Nakamoto, J.)