Oregon Supreme Court Clarifies Mansor Ruling for Search Warrants for Digital Data and Announces Framework for Suppression When Warrant Contains Both Constitutional and Unconstitutional Search Categories
by Anthony W. Accurso
The Supreme Court of Oregon clarified the procedure, flowing from its previous doctrine on cellphone searches, for reviewing search conditions for reasonableness and announced the framework for suppression where a warrant contains both constitutional and unconstitutional search categories.
Detective Opitz of the Beaverton Police Department obtained information in August 2017 that led police to believe that “J,” a 17-year-old female, was being trafficked by Ahmed Gbanabom Turay Jr. and an adult female identified as Gregg. Opitz located “numerous prostitution related postings” on a site advertising services by sex workers, sometimes offering a “2 for 1” deal for J and Gregg.
Opitz arranged for sex with J for the purposes of disrupting the trafficking. When J arrived at the meeting, officers stopped the vehicle in which she arrived, arresting the driver – Turay. During a search of the vehicle, officers located two cellphones, which they seized. During an interview, J discussed how she had met Turay approximately 12 weeks earlier and how he and Gregg had trafficked her.
Opitz obtained a warrant to search the cellphones, describing nine search categories of digital data to be searched for, seized, and analyzed. Another detective, McNair, executed the warrant, retrieving two types of evidence: “multiple incriminating photographs of J and others, some of which were screenshots from the website; and two extraction reports that set out multiple incriminating text messages between that phone and a contact named ‘baby,’ whom Opitz had determined to be J.”
Turay was charged with compelling prostitution in relation to J, in violation of ORS 167.017. He moved to suppress all evidence obtained in connection with the warrant, arguing the warrant lacked the particularity required by Article I, section 9, of the Oregon Constitution. The trial court denied his motion, and he was convicted at trial.
On appeal, the Court of Appeals reversed, finding that six of the nine search categories were overbroad. The State disagreed, and it appealed the decision to the state Supreme Court.
The Court began its analysis by discussing Article I, section 9, of the Oregon Constitution, which requires a warrant for searches and that search warrants must “particularly describe the place to be searched, and the person or thing to be seized.” The purpose of the particularity requirement is to narrow the scope of a search to only the premises and items “for which a magistrate has found probable cause to authorize the search.” State v. Trax, 75 P.3d 440 (Ore. 2003).
Up until the state Supreme Court decided State v. Mansor, 421 P.3d 323 (Ore. 2018) (discussing and analyzing application of the particularity requirement to the search of a computer), in June 2018, it had addressed the particularity requirement only in the contexts of warrants to search in the physical world. In that context, the Supreme Court held that the requirement is satisfied when the warrant’s description allows the executing officer to “locate with reasonable effort the premises to be searched.” Trax. Absent the mandatory degree of particularity, any search pursuant to the deficient warrant is unlawful, “whether of the premises actually intended or not, because of the danger that the privacy of unauthorized premises will be invaded.” State v. Blackburn/Barber, 511 P.2d 381 (Ore. 1973).
The Mansor Court addressed the application of the particularity requirement to a search of digital data and identified aspects that are different than a search in the physical world. The Court summed up the Mansor Court’s discussion as follows: “Digital data is of a markedly different character than tangible, physical evidence, and it is stored in an entirely different manner – including in ways that pose a more pronounced or enhanced risk of intrusion into a person’s privacy interests than otherwise would be permissible.”
Next, the Mansor Court discussed how searching for digital data differs from searching for evidence in the physical world. It explained that with digital data, the authorized search “necessarily may require examination of at least some information that is beyond the scope of the warrant” because searching for specific data on a computer is akin to searching for a proverbial needle in a haystack. That is, unlike the limited search of a physical location or item, searching for digital data on a device inherently involves a greater risk of extensive government intrusion into the private interests of the device’s owner. See Riley v. California, 573 U.S. 373 (2014). The Mansor Court concluded that “when the state looks for other information or uncovers information that was not authorized by the warrant, Article I, section 9, prohibits the state from using that information at trial, unless it comes within an exception to the warrant requirement.”
The Mansor Court then set forth governing principles in balancing the right to be free of unreasonable searches and seizures against the State’s lawful authority to gather evidence in criminal investigations. First, the privacy interests protected by Article I, section 9, is analyzed by an objective test – whether the State’s conduct significantly impairs a person’s interest in freedom from scrutiny. Second, searches in the physical world are naturally limited by barriers to entry that demarcate private space, but “Article I, section 9, must be read in light of the ever-expanding capacity of individuals and the government to gather information by technical means.” That is, Article I, section 9, applies to “every possible form of invasion – physical, electronic, technological, and the like.” Mansor.
Turning to the present case, after a thorough examination of Mansor and consideration of the arguments put forth by the parties, the Court reaffirmed, with clarifications, the standard announced in Mansor regarding the particularity inquiry. It announced: “We emphasized in Mansor, and we re-emphasize now, that warrants to search for digital data must describe the evidence sought with a heightened degree of specificity to satisfy the constitutional particularity requirement, but that specificity does not extend to limitations on how the search may be carried out.”
The Court then summed up the governing particularity framework as follows: “To satisfy the particularity requirement, a warrant to search for digital data must describe the information sought as specifically as reasonably possible in the circumstances. That standard requires the warrant to include, if available and relevant, a temporal description of when the information was created, accessed, or otherwise used. And it also requires that the warrant include, if available and relevant, other nontemporal limiting details – but, again, governed by a standard of reasonableness in the circumstances. Ultimately, to limit the enhanced risk of extensive governmental intrusion into a defendant’s privacy interests, the description in the warrant must identify, as specifically as reasonably possible in the circumstances, the information to be searched for, and the description must permit law enforcement, exercising reasonable effort, to identify the information sought with a reasonable degree of certainty. If the warrant describes the information sought with that degree of specificity, and if the supporting affidavit supplies probable cause to justify the described search, then the warrant satisfies the particularity requirement of Article I, section 9.” (internal citations and quotation marks omitted)
Apply the foregoing principles, the Court determined that of the nine search conditions listed in the warrant for Turay’s devices, the following three indisputably pass constitutional muster regarding particularity: “(3) Evidence regarding any communications (voice, email, text, or otherwise) involving prostitution related activities.”; “(5) Images, videos and/or data which depict [J or Gregg] in sexually explicit positions or conduct that relate to internet postings or advertisements.”; and “(6) Any evidence related to use of internet sites associated with prostitution, including [the website] for a period of time 06/15/2017 to 09/06/2017.”
These conditions did not all explicitly state a time frame which narrowed the search criteria, but they did relate to the probable cause statement based on the facts gathered from the victim.
The Court of Appeals determined the following conditions were insufficiently particular, and the Supreme Court agreed: “(2) Evidence related to the relationship between [J, Gregg,] and/or [defendant].”; “(7) Any evidence related to the use of Uber or other ride-sharing or taxicab companies.”; and “(9) Any other evidence related to the crimes of Prostitution (ORS 167.007), Promoting Prostitution (ORS 167.012) and/or Compelling Prostitution (ORS 167.017).”
Search Category 2 lacked any restriction “on the time or subject matter of the information that was sought,” and the phrase “evidence related to the relationship” is “so broad that nearly anything could be contemplated.”
Categories 7 and 9 fell short because “both failed to include dates, subject matter limitations, or other parameters that would have provided a reasonable degree of specificity to an officer executing those commands – despite the fact that more specific details were known to the investigating detective.”
This left the following conditions, which were designated as overbroad by the Court of Appeals but remained in dispute on review: “(1) Any and all communications (voice, email, text, or otherwise) between [J, defendant,] and/or Gregg.”; “(4) Any photos of [J, defendant, or Gregg] that show an association with prostitution including any profiting from prostitution.”; and “(8) Any evidence regarding the locations, including geolocation information, of the phones for a period of time from 06/15/2017 to 09/06/2017.”
The Court stated “the warrant could have more specifically described the first category of information sought as limited to communications involving prostitution related activities or communications that relate to internet postings or advertisements, but it did not.” It was specifically overbroad because it allowed the search of communications between Turay and Gregg that were well beyond the scope of their illegal conduct outlined in the investigation.
Category 8 did describe the type of information sought while providing a timeframe, but it “nonetheless omitted additional limiting factors that were known to law enforcement.”
“Given the nature of the activity being investigated…,” wrote the Court, “and officers’ suspicion as to where that activity was taking place, the warrant should have limited the scope of the search for location information to align with where officers suspected the prostitution activity to have occurred.”
Finally, Category 4 was found to be overbroad by the Court of Appeals, but the Supreme Court determined its wording sufficient. It agreed the phrase “association with prostitution including profiting from prostitution” provided “little if any guidance to law enforcement about data that reasonably could be expected to be found.”
However, the “description narrowed the range of photos sought to those only of the three individuals extensively described in the affidavit – J, Gregg, and defendant” – and “to only photos that suggested prostitution-related activities (or related profiting activities), not merely sexually explicit photos of any sort.” The Court determined “that description provided sufficient direction to law enforcement and limited the enhanced risk of intrusion into defendant’s personal privacy interests.”
The parties also disagreed about the remedy to be applied, i.e., manner and scope of suppression of the tainted evidence. Turay argued for all of the evidence to be suppressed, relying on Blackburn/Barber (explaining that, when a warrant “is sufficiently ambiguous it is impossible to identify with a reasonable degree of certainty the particular premises authorized to be searched, the warrant may not be executed in any search pursuant to it is illegal”).
Alternatively, the State wanted the offensive categories excised as if “the state had sought and executed two warrants – one entirely lawful – and that any evidence falling within the scope of the lawful warrant should be treated as though it had been obtained pursuant to a lawful search.”
The Court rejected both Turay’s categorical suppression of all the evidence approach as well as the State’s bright-line severance approach and instead chose and announced a “minimal factual nexus” approach involving burden-shifting based on its reasoning in State v. DeJong, 497 P.3d 710 (Ore. 2021) (explaining that if there is a “minimal factual nexus” between a constitutional violation and the challenged evidence, then the State must “establish that the challenged evidence was untainted by that violation”). The Court explained that the burden of establishing a factual nexus is “minimal,” meaning the defendant only needs to show that the challenged evidence “is connected to some prior government misconduct.” State v. Johnson, 73 P.3d 282 (Ore. 2003).
The Court concluded that five of the nine search categories in the warrant authorized searches that failed to meet the particularity requirement in Article I, section 9, which allowed police to engage in “unconstitutional exploratory rummaging” on Turay’s cellphones. Turay established a “minimal factual nexus” between unlawfully extracted digital evidence and all evidence found on the cellphones, according to the Court.
“Thus,” the Court concluded, “unlike Mansor, in which the warranted search had involved no constitutional violation, all evidence found on defendant’s phone presumptively must be suppressed. And the state can avoid suppression only by establishing that the challenged evidence is untainted by the constitutional violation.” It can do so, on remand for factual development to the trial court, by establishing that the challenged evidence in fact “was discovered while police were executing one of the lawful search commands as opposed to one of the invalid commands.”
Accordingly, the Court remanded the case for an evidentiary hearing where the State will have an opportunity to present evidence under this articulated standard for suppression. See: State v. Turay, 532 P.3d 57 (Ore. 2023).
Editor’s note: Anyone with an interest in searches of digital data under Oregon law should read the Court’s full opinion because it provides a thorough discussion of the topic, especially the issue of suppression of evidence in situations involving a warrant that contains both constitutional and unconstitutional search categories, in far greater detail than can be covered in an opinion summary.
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