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Failure to Identify Specific Evidence Sought in Telephone Search Violates Oregon Constitution

by Mark Wilson

The Oregon Court of Appeals held that a warrant to search a criminal defendant’s phone violated the Oregon Constitution because it was insufficiently particular, and therefore invalid.

During a traffic stop, police arrested Sengdavanh Savath for Oregon drug and driving offenses. While searching his vehicle, officers discovered substantial evidence of drug dealing. 

Officers seized Savath’s cellular smartphone and sought a warrant to search its contents for evidence of drug delivery and possession. The warrant also listed where in the phone the evidence may be found.

The resulting search disclosed a number of text messages suggesting drug use and trafficking such as “You should come smoke a bowl with me, please” and “of this particular stuff, it’s 42 for a half, 70 a whole,” and “I can go 38 and 68.”

Savath moved to suppress the evidence, arguing that the warrant failed to fulfill the particularity requirement of the Oregon and United States Constitutions. The trial court denied the motion, and Savath was convicted of all charges after a jury trial.

Following the Oregon Supreme Court’s recent decision in State v. Mansor, 363 Or 185, 421 P3d 323 (2018), the Court of Appeals reversed.

“Both the Supreme Court of the United States and the Oregon Supreme Court have recognized that, with regard to searches for data on cell phones or similar electronic devices, the particularity requirement takes on special significance,” the court observed. “A warrant for an electronic search ‘must identify, as specifically as reasonably possible in the circumstances, the information to be searched for.’”

“The essential ‘thing’ about which a warrant must be particular is the probative information, not types of files or their location within the computer’s file-management system,” Mansor instructed. “The ‘what’ is a description of the information related to the alleged criminal conduct.” The search must also include “if relevant and available, the time period during which that information was created, accessed, or otherwise used.”

Applying Mansor, the court ultimately agreed with Savath that “the warrant’s summary characterization of the information sought – ‘related to controlled substances offenses’ – was insufficient to apprise the executing officer of which items were or were not subject to the warrant.” As such, “the warrant ... was not sufficiently specific, and therefore did not satisfy the particularity requirement of’ the Oregon Constitution. See: State v. Savath, 298 Or App 495, _ P3d _ (Or App 2019).

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