128 June 15, 2023 No. 15
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
AHMED GBANABOM TURAY, JR.,
Respondent on Review.
(CC 17CR59493) (CA A166973) (SC S068894)
On review from the Court of Appeals.*
Argued and submitted May 3, 2022.
Peenesh Shah, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Morgen E. Daniels, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for respondent on review. Also on the brief was
Ernest G. Lannet, Chief Defender.
Kelly K. Simon, American Civil Liberties Union of Oregon,
Portland, filed the brief for amici curiae the American Civil
Liberties Union and the American Civil Liberties Union
of Oregon. Also on the brief were Rachel Dallal, American
Civil Liberties Union of Oregon, Portland, and Jennifer
Stisa Granick, American Civil Liberties Union Foundation,
San Francisco.
Before Flynn, Chief Justice, Duncan, Garrett, DeHoog,
and Bushong, Justices, and Balmer and Walters, Senior
Judges, Justices pro tempore.…
______________
* On appeal from the Washington County Circuit Court, Oscar Garcia,
Judge. 313 Or App 45,
493 P3d 1058 (2021).
… Nelson, J., resigned February 25, 2023, and did not participate in the
decision of this case. James, J., did not participate in the consideration or decision
of this case.
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FLYNN, C. J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
Duncan, J., concurred and filed an opinion in which
Walters, S. J., joined.
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130 State v. Turay
FLYNN, C. J.
Defendant in this criminal case was convicted of
compelling prostitution, based in part on incriminating
images and text messages that law enforcement found pursuant to a warrant to search his cell phone for nine categories of information (search categories). Defendant challenges
the warrant, and that challenge presents the opportunity
for this court to further consider the constitutional requirement that search warrants “particularly describe” the place
to be searched or thing to be seized, Or Const, Art I, § 9, in
the context of warrants that authorize law enforcement to
search for digital data. See generally State v. Mansor, 363
Or 185,
421 P3d 323 (2018) (discussing and analyzing application of that “particularity” requirement to the search of a
computer). And, because it is undisputed that the warrant
in this case contained some search categories that failed
to particularly describe the evidence sought, this case also
requires us to decide whether and to what extent those
unlawful search categories require suppression of evidence
obtained through the search of defendant’s phone. That
question, in turn, involves a two-step inquiry: whether the
unlawful search categories invalidated the warrant in toto
and, if not, how the trial court should determine whether
Article I, section 9, prohibits the state from using evidence
that it obtained through executing the partially unlawful
warrant to search for digital data.
As explained below, we conclude that five of the nine
search categories set out in the warrant to search defendant’s cell phone failed to satisfy the constitutional particularity requirement and, thus, that those categories failed
to authorize a lawful search. We further conclude, however,
that the inclusion of those unlawful search categories in the
warrant does not necessarily require suppression of all evidence found on defendant’s phone, for the following reasons.
First, because the state extracted and examined data from
defendant’s phone in an effort to find evidence that no lawful category of the warrant authorized it to search for (in
addition to the lawfully authorized categories), defendant
has established a minimal factual nexus between a constitutional violation and the challenged evidence. Second,
that minimal factual nexus undermines the presumption of
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validity that ordinarily attends warrant-based searches and
therefore requires suppression unless the state establishes
that the challenged evidence was not tainted by the constitutional violation. We finally conclude that, in this case,
the appropriate disposition is a remand for development of a
factual record and for the trial court to make the required
factual findings under the correct legal standard.
I. FACTS
The search warrant at issue authorized law
enforcement to search two cell phones belonging to defendant. The affidavit supporting that warrant recited that
Detective Opitz of the Beaverton Police Department had
obtained information in August 2017 that had prompted
him to suspect that defendant and an adult female, Gregg,
were promoting and compelling a 17-year-old victim, J, into
prostitution. Opitz located “numerous prostitution related
postings” associated with Gregg—some with Gregg and the
victim advertised as a “2 for 1” deal—on websites that he
knew to be used by individuals offering sex for sale. Opitz
then set up an undercover prostitution engagement with J
by text message, including an arranged date, time, location,
and price. On that arranged day, Opitz saw a car arrive
at the designated parking lot just as J texted to say that
she was arriving. Opitz recognized J when she exited the
car, and other officers then stopped the car and arrested
the driver—defendant. During an ensuing search of the car,
officers found and seized two cell phones that they determined belonged to defendant.
Opitz later interviewed J, who told Opitz how she
used her own cell phone to conduct business—that she
had used her phone to communicate with customers and
that she had posted, but not paid for, advertisements on
a prostitution-related website (the website). She also told
Opitz that she had met Gregg about 12 weeks prior and that
Gregg had introduced her to defendant and also to prostitution. J further recounted that both Gregg and defendant
knew that she was a minor; that she had engaged in joint
prostitution engagements together with Gregg; and that
she and defendant were “boyfriend/girlfriend,” but also that
defendant and Gregg had been in a relationship. Not long
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132 State v. Turay
thereafter, defendant was indicted on one count of compelling prostitution in relation to J, ORS 167.017.
Opitz then prepared an affidavit and accompanying
search warrant to search various cell phones, including the
two belonging to defendant.1 The affidavit included extensive information about Opitz’s background and training, as
well as several statements—based on his knowledge and
experience—relating to the connection between sex trafficking and the use of the internet and cell phones. Those
aspects of the affidavit further discussed how various information could be stored and retrieved on cell phones, including an explanation of various cell phone features. The affidavit then described facts relating to the investigation of
defendant, including those set out above.2
Finally, the affidavit identified the cell phones to
be searched—including defendant’s phones—and described
nine search categories of digital data to be searched for,
seized, and analyzed:
“(1) Any and all communications (voice, email, text, or
otherwise) between [J, defendant,] and/or … Gregg.
“(2) Evidence related to the relationship between [J,
Gregg,] and/or [defendant].
“(3) Evidence regarding any communications (voice,
email, text, or otherwise) involving prostitution
related activities.
“(4) Any photos of [J, defendant, or Gregg] that show an
association with prostitution including any profiting
from prostitution.
“(5) Images, videos and/or data which depict [J or Gregg]
in sexually explicit positions or conduct that relate to
internet postings or advertisements.
1
The warrant also authorized the search of two cell phones belonging to J
and another belonging to Gregg, but defendant’s motion to suppress concerned
only defendant’s phones, and the record reflects that only one of defendant’s
phones was ultimately searched.
2
The affidavit also stated that, in mid-September 2017, defendant and
Gregg each had been indicted in federal district court on one count of sex trafficking of a minor. We discuss additional detail from the affidavit later in this
opinion.
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“(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.
“(7) Any evidence related to the use of Uber or other
ride-sharing or taxicab companies.
“(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.
“(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).”3
The accompanying warrant was attached to the affidavit
and repeated that wording verbatim.
A magistrate issued the warrant, and another
detective, McNair, executed the search on all the phones
listed in the warrant, using proprietary software that
enabled the forensic examination of mobile devices. From
one of defendant’s cell phones, McNair retrieved 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.4 Notably, other
than McNair’s explanation at trial about how the software
functioned as a general matter and also about the nature of
the extraction reports that showed the text messaging, no
testimony or other material in the record below described
how the search of defendant’s phone actually had been conducted—for example, the record does not show whether all,
or just some, data was extracted before being analyzed; it
does not show the order in which certain steps of the process occurred; and it does not show whether each of the
described categories of evidence from the warrant was the
subject of its own search when the incriminating evidence
was discovered.
3
The parties refer to those nine search categories as “search commands,” but
they are not “search commands” in the technical sense—instead, they are separately described categories of the digital data that was the object of the search.
4
One extraction report was more comprehensive than the other, setting out
similar, but also more extensive, text messaging between defendant and a contact who turned out to be J.
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134 State v. Turay
Before trial, defendant moved to suppress all evidence resulting from the search of his cell phone, arguing
that the warrant had violated the particularity requirement
set out in Article I, section 9.5 The trial court denied that
motion, and the state thereafter introduced the incriminating photos and text messages at trial. A jury convicted
defendant on one count of compelling prostitution, and he
appealed.
On appeal, defendant renewed his argument that
the state had obtained the incriminating evidence in violation of the particularity requirement and that the trial
court therefore should have granted his motion to suppress.
In addressing those contentions, the Court of Appeals first
determined that three of the search categories described in
the warrant—the third, the fifth, and the sixth—satisfied
the particularity requirement. State v. Turay, 313 Or App
45, 60, 61-62,
493 P3d 1058 (2021). But that court concluded
that the remaining six categories fell short—either due to
the absence of various limiting detail (such as location, time,
or subject matter), or because they otherwise lacked the requisite specificity to permit the executing officer to reasonably identify the information sought. Id. at 58-62. Finally,
the court concluded that, because it could not determine
from the record which (if any) aspects of the state’s challenged evidence had been discovered through execution of
one of the three lawful search categories, it must remand to
the trial court for further development of the record about
how the forensic search of defendant’s cell phone in fact had
been conducted. Id. at 65-66.
The state petitioned for review, challenging the
decision of the Court of Appeals. Although the state concedes that some of the search categories described in the
warrant were insufficiently particular, it challenges the
Court of Appeals’ other key conclusion that other search
categories failed to satisfy the constitutional particularity requirement, and it contends that no remand is needed
because all the challenged evidence was properly admitted
5
Defendant also argued that the warrant had not been supported by probable cause. The Court of Appeals rejected that argument, and defendant has not
challenged that aspect of the Court of Appeals decision.
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as falling objectively within the scope of lawful search categories. We allowed the state’s petition for review, and, as
explained below, we agree with the Court of Appeals that
the case must be remanded for the development of a factual
record and additional factual findings, although our conclusions differ from that court in two respects: (1) we agree with
the state that one search category that the Court of Appeals
assessed as constitutionally deficient satisfied the particularity requirement; and (2) our instructions on remand differ from those set out by the Court of Appeals.6
II. ANALYSIS
A. Legal Background
We begin by setting out the legal background that
frames the parties’ dispute. That background includes the
particularity requirement itself, together with our case law
construing that requirement—including, most recently, in
the digital data context in Mansor, 363 Or 185.
1. Particularity requirement generally
The particularity requirement for warrants is set
out in Article I, section 9, of the Oregon Constitution:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but
upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and the
person or thing to be seized.”
(Emphasis added.) The historic motivation for Article I,
section 9, was a reaction to “general warrants,” which were
“ ‘writs that authorized the bearer to search unspecified
places or arrest persons suspected of having been involved
with a criminal offense.’ ” Mansor, 363 Or at 206 (quoting
Jack L. Landau, The Search for the Meaning of Oregon’s
Search and Seizure Clause, 87 Or L Rev 819, 822-23 (2008));
6
The Court of Appeals’ stated disposition was to vacate the trial court’s
judgment and then remand for a determination of how the search had been conducted. Turay, 313 Or App at 66. We conclude, however, that the appropriate
disposition is to reverse (not vacate) the trial court’s judgment, with remanded
proceedings as described later in this opinion. We therefore affirm in part and
reverse in part the decision of the Court of Appeals.
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136 State v. Turay
see also State v. Carter, 342 Or 39, 43,
147 P3d 1151 (2006)
(explaining that the historical motivation for Article I, section 9, “was a fear of general warrants,” which “gave the
bearer an unlimited authority to search and seize” (internal
quotation marks omitted)). In keeping with that purpose,
the particularity requirement “exists to ‘narrow the scope of
the search,’ ” so that officers search only those premises or
items “ ‘for which a magistrate has found probable cause to
authorize the search.’ ” Mansor, 363 Or at 212 (quoting State
v. Trax, 335 Or 597, 602,
75 P3d 440 (2003)); see also State v.
Devine, 307 Or 341, 343,
768 P2d 913 (1989) (explaining that
the particularity requirement minimizes the risk of intrusion into premises other than those as to which a magistrate
has found probable cause to search).
Until this court’s recent decision in Mansor, we had
addressed the particularity requirement only in the context
of warrants authorizing searches of the physical world. In
that context, we have held that the particularity requirement is satisfied if the warrant’s description permits the
executing officer to “locate with reasonable effort the premises to be searched.” Trax, 335 Or at 603 (internal quotation
marks omitted). Also, as to that type of warrant, the fact
that one or more certain known facts might have enabled the
drafting of a more particularized warrant does not necessarily mean that the warrant as drafted was not sufficiently
particularized. Id. at 610. Rather, the question is whether
the description, as written, was sufficiently clear to identify the premises to be searched with a “reasonable degree
of certainty.” Id. at 605-06, 610. If a warrant authorizing a
search of physical premises fails to describe the location of
the search with the required degree of particularity, however, then any search pursuant to the warrant “is illegal,
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, 266 Or 28, 35,
511
P2d 381 (1973).
2. The particularity requirement as applied to warrants
to search for digital data
In Mansor, we considered the proper analytical
framework for applying the particularity requirement to the
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search of a personal computer containing digital data. 363
Or at 212. We identified aspects of that requirement that
differ from the context of a warrant to search the physical
world, and we identified a special limitation on the state’s
use of information that it obtains pursuant to a warrant to
search for digital data. Because Mansor is fundamental to
the parties’ arguments and our resolution of aspects of this
case, we discuss it next in some detail.
In Mansor, police suspected that the defendant
had played a role in the death of his infant son. 363 Or at
189. Based on information learned during their investigation, police sought a warrant to seize, search, and forensically examine several computers that they had seen in the
defendant’s home. Id. at 189-91. The warrant “contained no
instructions or limitations regarding how the computers
were to be analyzed,” but it was supported by an attached
affidavit describing evidence that might be found on the
computers, most notably, internet search history associated
with the date and approximate time when the defendant
had called 9-1-1 to report the injury that had led to his son’s
death. Id.7
In directing and then conducting the ensuing
search of the defendant’s computers, detectives developed
lists of search terms associated with the type of injury that
the defendant’s son had suffered (or associated with related
surrounding circumstances), and forensic examiners later
added additional terms of their own. Id. at 191. Ultimately,
with minor exceptions, the examiners assembled a “complete Internet history” of the defendant’s computers, including deleted internet history records. Id. at 192. Not all the
records were associated with identified dates and times, and
the final forensic analysis incorporated records dating back
more than six years, including results for the search term
7
The warrant in Mansor itself had merely authorized the seizure and search
of the computers (and other equipment); it had contained no detail about the
information sought or how the computers were to be analyzed. One issue in that
case therefore involved the extent to which the attached affidavit could be considered as providing the “particularity” description required of the warrant, with
the court concluding that it would consider the object of the search described
in the affidavit to be part of the warrant. 363 Or at 203. For clarity here, references to the “warrant” in Mansor mean the warrant read in conjunction with the
attached affidavit.
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138 State v. Turay
“abuse” covering a 16-month period before the defendant’s
son’s death. Id. at 192-93.
Before trial, the defendant moved, unsuccessfully,
to suppress all evidence discovered on his computers, arguing that the warrant had been “worded so broadly as to
constitute a general warrant.” Id. at 193 (internal quotation marks omitted). The state later relied on aspects of the
forensic analysis at trial, and a jury convicted the defendant
of murder and multiple other felonies. Id. at 194-95. The
Court of Appeals reversed and remanded, and this court did
as well, although on narrower grounds—ultimately concluding that the warrant had been sufficiently particular, but
that the execution of the warrant had involved a forensic
examination that exceeded the defined scope of the warrant
and that the trial court had erred in admitting the state’s
evidence obtained as a result of that more extensive forensic
examination. Id. at 196, 223.
Mansor discussed in detail the characteristics of
digital data that alter how we understand the particularity requirement of Article I, section 9. Our first key point
pertained to the nature of digital data itself and the ways
in which such data, “whether stored on a computer or other
digital device, differs from physical evidence”—that is,
physical evidence that may be the subject of a more conventional warrant that must particularly describe the place to
be searched. Id. at 197. Those differences included the fact
that, to be meaningful, raw digital data must be processed
and displayed by intermediating programs and hardware,
id.; some data may not be in the form of “files,” id.; and, with
digital data, an examiner has no way to know what data a
file contains without opening it, “meaning that desired data
may be located in any part of the digital media or organizational structure,” including in multiple places, and it even
can be “inaccurate to think of the data as being located at
any particular ‘place’ or ‘places,’ ” id. at 198; see also
id. at
214 (observing that, unlike in the physical world, in which
“ ‘different spatial regions are used for different purposes,’ ”
with computers, “there is ‘no way to know ahead of time
where … a particular file or piece of information may be
located’ ” (quoting Orin S. Kerr, Digital Evidence and the
New Criminal Procedure, 105 Colum L Rev 279, 303 (2005))).
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Simply stated: 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.
The next key point discussed in Mansor focused on
how the process of searching for digital data necessarily differs from the process of searching for physical evidence. We
explained that commentators and courts “sometimes refer to
searches of computers in a criminal investigation as involving ‘two basic steps: the data acquisition phase and the data
reduction phase.’ ” Id. at 199 (quoting Orin S. Kerr, Searches
and Seizures in a Digital World, 119 Harv L Rev 531, 547
(2005)). Analogizing to the proverbial needle in a haystack,
we described the “data acquisition” step as “collecting the
hay,” and the “data reduction” step as “looking through the
haystack for the needle”—“an examination (‘search’) of the
digital data, … by a forensic examiner, to identify the particular data that may be useful as evidence.” Id. (quoting
Kerr, 119 Harv L Rev at 545). We added that, because “the
location or form of specific information on a computer often
cannot be known before the computer is actually examined,
examiners conducting a reasonable computer search” may
need to “look widely on the computer’s hard drive to ensure
that all material within the scope of the warrant is found.”
Id. at 199-200. Stated another way, the forensic examination
authorized by a warrant “necessarily may require examination of at least some information that is beyond the scope of
the warrant.” Id. at 220.
We relatedly considered in Mansor a United States
Supreme Court decision, Riley v. California, 573 US 373,
134
S Ct 2473,
189 L Ed 2d 430 (2014), which had involved a
warrantless seizure and search of a cell phone incident to
arrest. In Riley, the Supreme Court rejected the notion that
the search of all data on a phone was “ ‘materially indistinguishable’ ” from searches of other physical items found
on an arrestee’s person, explaining that cell phones “ ‘differ
in both a quantitative and a qualitative sense’ ” from other
physical items, including as to their immense storage capacity, their collection of many distinct types of information,
and their capability of revealing personal internet search
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140 State v. Turay
history, interests, locations, political views, medical information, and myriad other personal information. Mansor, 363
at 201-02 (quoting Riley, 573 US at 393 (internal quotation
marks omitted)). In other words, unlike the circumscribed
search of a physical place or item, the search for digital data
on a cell phone inherently carries with it—from the very
outset of the search—an enhanced risk of extensive governmental intrusion into the privacy interests of the owner of
the phone.
Taking those considerations into account, this
court in Mansor then set out several governing principles,
to ensure protection of “an individual’s right to be free from
unreasonable searches and seizures while also recognizing the government’s lawful authority to obtain evidence
in criminal investigations, including through searches of
digital data.” 363 Or at 187, 206. We began with the wellestablished principle that “ ‘[t]he privacy interests protected
from unreasonable searches under Article I, section 9, are
defined by an objective test of whether the government’s
conduct would significantly impair an individual’s interest
in freedom from scrutiny, i.e., [the individual’s] privacy.’ ”
Id. at 206-07 (quoting State v. Wacker,
317 Or 419, 425,
856
P2d 1029 (1993) (first brackets in Mansor; some internal
quotation marks omitted)). We also recognized—as did the
Supreme Court in Riley—that more conventional searches
involve protected privacy interests “commonly … circumscribed by the space in which they exist and, more particularly, by the barriers to public entry … that define that
private space”; and we emphasized that Article I, section 9,
“must be read in light of the ever-expanding capacity of
individuals and the government to gather information by
technological means.” Id. at 207 (internal quotation marks
omitted). “That is, Article I, section 9, applies to ‘every possible form of invasion—physical, electronic, technological, and
the like.’ ” Id. (quoting State v. Smith, 327 Or 366, 373,
963
P2d 642 (1998)).
Applying those principles, we further considered
in Mansor how the particularity requirement applies in the
context of a warrant to search for digital data. We initially
concluded that, although the execution of a lawful warrant
to search digital data might require the examination of
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some information that is beyond the scope of that warrant,
the individual’s privacy interests preclude the state from
using that information unless a warrant exception applies.
Id. at 220-21.
We next explained that the particularity analysis—
in any context—is informed by “two related, but distinct,
concepts,” “specificity” and “overbreadth.” 363 Or at 212.
First, the warrant must be “sufficiently specific in describing the items to be seized and examined[.]” Id. Second, “even
if the warrant is sufficiently specific, it must not authorize a
search that is broader than the supporting affidavit supplies
probable cause to justify.”8 Id. (internal quotation marks
omitted). We further explained in Mansor, as discussed next,
that the specificity component gives rise to special requirements in the context of a warrant to search for digital data.
Before Mansor, we had explained that a warrant
authorizing a search of the physical world satisfies the
specificity component of the particularity requirement if its
description (1) “ ‘permits the executing officer to locate with
reasonable effort the premises to be searched,’ ” id. (quoting Trax,
335 Or at 603 (internal quotation marks omitted));
and (2) describes “items to be seized and examined” in a way
“that the officers can, ‘with reasonable effort[,] ascertain’
those items to a ‘reasonable degree of certainty,’ ” id. (quoting Blackburn/Barber,
266 Or at 35). In Mansor, though, we
determined that a warrant to search for digital data also
“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. And we explained that, “when a time-based
description of the information sought on a computer is relevant and available to the police,” that detail “ordinarily
should be set out in the affidavit” and included in the
warrant’s description of the evidence sought, as a way of
8
Overbreadth as an aspect of the particularity inquiry differs from the fundamental requirement of Article I, section 9, that “no warrant shall issue but
upon probable cause, supported by oath, or affirmation.” The overbreadth inquiry
arises even when there is probable cause for a warrant to issue and asks, essentially, whether an individual search category reaches beyond the scope of the
probable cause that supports the warrant.
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142 State v. Turay
“identifying with greater specificity the ‘what’ ” that is the
object of the search. Id. (emphasis added).
We further emphasized in Mansor, however, that the
warrant need not prescribe how a search for digital data is
to be conducted. Given the challenges of identifying beforehand the location or form in which specified information will
be found on a computer, we explained, “courts generally have
not required that warrants include specific search protocols
or ex ante limitations on computer searches.” 363 Or at 200.
We added that a magistrate reviewing a warrant application “would have little basis to make an informed decision
as to whether proposed protocols regarding the seizure and
search of a computer are sufficient to protect constitutional
privacy interests or impose a constitutionally unnecessary
burden on a criminal investigation.” Id. And we rejected the
defendant’s contention that a sufficiently particular warrant must limit where on the computer officers may look to
find the information described in the warrant. Id. at 216.
Ultimately, this court in Mansor determined that
the affidavit in question had supplied probable cause that
the defendant’s computer would contain evidence of his internet search history from around the time that he had called
9-1-1, which would be relevant to the criminal investigation
into the death of the defendant’s son. Id. at 219. Given that
probable cause, we determined that the warrant (informed
by the affidavit) satisfied the particularity requirement
because it described the information sought with sufficient
specificity and limited the extent of the authorized search
to no “broader than the supporting affidavit supplie[d] probable cause to justify.” Id. (internal quotation marks omitted). We also concluded, however, that the actual forensic
examination—that is, the execution of the warrant—had
involved the review of information outside of the limited time
period that the warrant had described. Id. at 221.
Accordingly, we turned to the question of whether
the state could use information that it had discovered by
searching beyond the scope of a lawful warrant. Id. at 220.
We reiterated that “the purpose of rules requiring the suppression of evidence gathered in violation of the constitution is to restore the parties to the position they would have
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been in had the violation not occurred.” Id. at 221. And we
explained that “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.” Id. at 220. Thus, we 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.” Id. at 221; see also Orin S. Kerr, Executing
Warrants for Digital Evidence: The Case for Use Restrictions
on Nonresponsive Data, 48 Tex Tech L Rev 1, 24 (2015) (suggesting a “use restriction” for data that is “nonresponsive”
to the search warrant). And because the warrant in Mansor
had not authorized law enforcement to search for and recover
“much of the … voluminous material” discovered on the
defendant’s computer, we concluded that the state was prohibited from introducing that evidence against the defendant at trial and that the defendant’s pretrial motion to
suppress the evidence therefore should have been granted.
Id. at 223.
Mansor significantly informs the two questions that
we must resolve in this case: (1) whether the Court of
Appeals correctly determined that six of the nine search
categories in the warrant to search defendant’s cell phone
failed to describe the evidence sought with the particularity required by Article I, section 9; and (2) the extent to
which the state is permitted to rely on any evidence that it
obtained through the search of defendant’s phone when—as
the state concedes—some of the search categories failed to
satisfy the particularity requirement. We turn next to the
first of those questions.9
B. Satisfaction of the Particularity Requirement
As described more fully below, the warrant in question authorized law enforcement to search defendant’s cell
phone for nine separately numbered categories of digital
data, and the Court of Appeals determined that six of those
9
Unlike Mansor, this case does not involve the question whether execution of
the warrant exceeded its defined scope.
128_371.indd 143 6/15/2023 7:32:04 AM
144 State v. Turay
nine search categories failed to satisfy the constitutional
particularity requirement of Article I, section 9. The state
challenges that conclusion only in part, because it concedes
that the Court of Appeals correctly identified three of the
search categories as deficient. But the state contends that
the six other search categories satisfied the particularity
requirement.
Focusing on the overbreadth and specificity concepts that inform the particularity analysis, the state proposes that the former ensures that the scope of the authorized search reaches no farther than the probable cause
that supports the warrant and the latter requires that those
executing the warrant can understand with a “reasonable
degree of certainty” the information to be sought. The state
relies on that formulation to support its contention that six
of the nine search categories were sufficiently particular.
Defendant disagrees with the state’s framing of the
specificity component, and he urges us to conclude that a
variety of specific details must be included when describing the evidence sought in a search for digital data. But he
does not specifically challenge the conclusion that the Court
of Appeals reached with respect to the particularity of the
individual search categories. Instead, he contends that some
of the categories that the Court of Appeals held were insufficiently particular were so constitutionally deficient that they
effectively subsumed all the other categories and rendered
the entire warrant unlawful. As we will explain, defendant’s
latter argument is one that conceptually fits with the second
question that we address: the extent to which some unconstitutional search categories in the warrant required the
trial court to suppress evidence obtained through the search
that the warrant purported to authorize. Before reaching
that question, we will resolve the parties’ dispute regarding
what particularity requires in the context of a search for
digital data and determine which search categories satisfied
the particularity requirement.
1. The particularity analysis
As set out above, the state proposes ways of understanding both the overbreadth and specificity concepts
that inform our analysis of the constitutional particularity
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Cite as 371 Or 128 (2023) 145
requirement. We agree with the state’s framing of the overbreadth requirement—that it ensures that the warrant is
not purporting to authorize a search for evidence beyond
what “the supporting affidavit supplies probable cause to
justify.” Mansor, 363 Or at 212 (internal quotation marks
omitted). We also agree in part with the state’s framing of
the specificity requirement—that it ensures that the warrant’s description of the information sought allows a reasonable officer to ascertain with a reasonable degree of certainty whether a particular item or piece of information falls
within that scope. See id. at 219 (concluding that the warrant’s description of information of internet search history
for a specific date “informed those executing the warrant
as to what they were to look for with a reasonable degree of
certainty” (internal quotation marks omitted)).
But the state adds an additional proposition: that
a warrant will be sufficiently specific as long as its description permits law enforcement to identify with a reasonable
degree of certainty whether a given piece of data falls within
the search category, no matter how broad the scope of the
description. We disagree. As explained in Mansor, the specificity concept serves another, critically important purpose
as to warrants to search for digital data: Beyond providing
sufficient direction to law enforcement, specificity limits,
at the outset, the enhanced risk of extensive governmental intrusion into a defendant’s privacy interests that may
occur when law enforcement collects and examines digital
data to find the evidence described in the warrant. See id.
at 215-16 (favorably quoting Wheeler v. State, 135 A3d 282,
305 (Del 2016), in which the Delaware Supreme Court concluded that a warrant purporting to authorize an unlimited
examination of a defendant’s digital media “paved the way
for ‘unconstitutional exploratory rummaging’ ”).
That is, the requirement from Mansor that a warrant to search for digital data “must describe, with as much
specificity as reasonably possible under the circumstances,
what investigating officers believe will be found on the electronic devices,” 363 Or at 216 (emphasis in original), serves
to appropriately narrow the described scope of the search in
two ways. First, it ensures that the description permits law
enforcement exercising reasonable effort to identify with
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146 State v. Turay
a reasonable degree of certainty the information sought.
Second, it limits the enhanced risk of extensive governmental intrusion by ensuring that that intrusion is as limited “as reasonably possible under the circumstances.”10
Id. at 218. The state’s proposed test for specificity ignores
the additional protection that Mansor requires for warrants
to search for digital data.
Turning to defendant’s arguments, we begin by
observing that his underlying premise is correct: At its outset, a search for digital data inherently carries with it an
enhanced risk of extensive governmental intrusion into personal privacy interests that are equal to, or even surpass,
the privacy interest in one’s home. Mansor, 363 Or at 222.
That premise established the foundation for the framework
set out in Mansor, which imposes the following requirement
for specificity in the context of a search for digital data: The
warrant “must describe the information the state seeks (the
‘what’) with as much specificity as reasonably possible under
the circumstances, including, if available and relevant, a
temporal description of when the information was created,
accessed, or otherwise used.” Id. And, of course, the warrant
also must satisfy the “overbreadth” component: It must not
authorize a search that is “broader than the supporting affidavit supplies probable cause to justify.” Id. at 212 (internal
quotation marks omitted).
But we are not persuaded by defendant’s additional
suggestion that a warrant to search for digital data be subject to “heightened” requirements, beyond those imposed in
Mansor. In considering that argument, we first clarify that
Mansor already imposed specificity requirements beyond
those required for a conventional warrant to search a physical place: Unlike a warrant to search a physical place,
10
We note that the specificity requirement may at times be conflated with
the related concept of overbreadth—for example, a description that is insufficiently specific creates a risk that the description will be understood by officers
to authorize a broader search than the probable cause supports. But that lack of
a clear description is more precisely a specificity problem; rather than “authoriz[ing] a search that is broader than” probable cause would support, the lack of
specificity creates ambiguity about the scope of the search that is authorized. See
Mansor, 363 Or at 212 (describing those “related, but distinct, concepts” (internal
quotation marks omitted)). Although the concepts are related, they are distinct
and call for distinct analysis.
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Cite as 371 Or 128 (2023) 147
information that is the object of a search for digital data
must be described “as specifically as reasonably possible in
the circumstances,” and that description must include, so
long as “relevant and available, the time period during which
that information was created, accessed, or otherwise used.”
Id. at 218 (emphasis added); cf. Trax,
335 Or at 603 (warrant to search a physical place “satisfies the particularity
requirement if it permits the executing officer ‘to locate with
reasonable effort the premises to be searched’ ”; under the
circumstances in Trax, the warrant at issue satisfied that
requirement even though it could have been “more particularized” by specifying that another residence was located
on the second floor of the house at issue (quoting State v.
Cortman, 251 Or 566, 568-69,
446 P2d 681 (1968))).11 As just
explained, that heightened specificity standard serves to
limit the enhanced risk of extensive governmental intrusion
into personal privacy interests that is inherent in a search
for digital data. Mansor, 363 Or at 222.
Although defendant acknowledges that standard
from Mansor, he proposes that a description in a warrant to
search for digital data must set out all available and pertinent limiting details, whether temporal or otherwise, given
the extensive amount of data that is exposed to scrutiny
when the warrant is executed. As explained, Mansor already
requires that such warrants include available and pertinent
limiting details—temporal or otherwise—in requiring that
a warrant describe the evidence sought “as specifically as
reasonably possible in the circumstances.” Id. at 218. To the
extent, however, that defendant proposes a reframing of the
Mansor specificity test as a categorical requirement that a
warrant to search for digital data incorporate all known and
11
The warrant in Trax had “listed the street address of what turned out to
be a multi-unit dwelling” and named the defendants as persons to be searched.
335 Or at 604. Because officers were able to learn which unit belonged to the
defendants and “then searched only that residence,” this court concluded that the
warrant satisfied the particularity requirement. Id. The warrant in Cortman had
named the defendant and identified his apartment building by street number,
but had not specified an apartment number; however, the executing officer had
known in which apartment the defendant resided and searched only that apartment. The court concluded that, because the officer had been able to execute the
warrant “without straying into premises which he ha[d] no authority to enter,”
the warrant had not been fatally defective under the particularity requirement.
251 Or at 568-69.
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148 State v. Turay
pertinent details, we reject his proposed reframing. As this
case aptly illustrates, what is or is not a pertinent or available detail is often in dispute and, in the end, a determination that often can be made only in hindsight. See id. at 216
(stating, in rejecting the notion that the description include a
file type, that, “[g]iven the protean variety of factual settings
in which such warrants are likely to be sought, it would be
a fool’s errand to set out, in the abstract, detailed guidelines
for determining how specific the ‘what’ of the search must be
to meet the particularity requirement” in the digital search
context). More importantly, defendant’s approach effectively
would remove the concept of “reasonableness” in the circumstances, whenever an additional detail is later identified as
“pertinent.” That would run counter to the entire foundation of Article I, section 9—which, as explained above and
also in Mansor, is grounded in reasonableness. See id. at
206-07 (providing that “ ‘[t]he privacy interests protected
from unreasonable searches under Article I, section 9, are
defined by an objective test of whether the government’s conduct would significantly impair an individual’s interest in
freedom from scrutiny, i.e., [the individual’s] privacy’ ” (quoting Wacker, 317 Or at 425 (first brackets in Mansor; some
internal quotation marks omitted; emphasis added)).
Defendant relatedly argues that, given the nature
of the intrusion that may occur during a search for digital data, the description in a warrant must provide sufficient direction “such that all officer discretion is eliminated”
during the search. Again, however, that proposition is at
odds with our emphasis in Mansor that the data sought on
a digital device “may be located in any part of the digital
media or organizational structure” and that “the location or
form of specific information on a computer often cannot be
known before the computer is actually examined.” 363 Or at
198-99. Thus, “[a] forensic examiner who locates intentionally (or unintentionally) hidden information on a computer
likely has responded to clues, followed instincts, and pursued many dead ends before being successful.” Id. at 199. We
added—as described above—that a magistrate reviewing a
digital search warrant “would have little basis to make an
informed decision” about “search protocols,” id. at 200, and
we rejected the defendant’s contention that a sufficiently
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Cite as 371 Or 128 (2023) 149
particular warrant must constrain the examiner’s discretion regarding where to look for the described information,
id. at 216. 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.12
And Mansor itself illustrates that point. There, we
concluded that the warrant to search the defendant’s computer had identified with sufficient specificity the information sought: the defendant’s internet search history for an
identified date, based on an accompanying description that,
during the 15 minutes before calling 9-1-1, he had searched
online “what he should do” based on his son’s physical condition. Id. at 189, 219. We did not require a more particularized description—such as, for example, the recitation of
any particular search term—because, in the circumstances
at hand, the description of internet search history in the
identified timeframe had been sufficient to tell law enforcement executing the warrant “what they were to look for
‘with a reasonable degree of certainty.’ ” Id. at 219 (quoting
Blackburn/Barber, 266 Or at 35). We decline to adopt defendant’s contrary rule that a warrant satisfies the particularity requirement only if it precludes officer discretion in the
execution of the search.
In sum, we adhere to the standard announced in
Mansor, as clarified above. 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.” 363 Or at 218. That standard requires
the warrant to include, if available and relevant, a temporal
description of when the information was created, accessed,
or otherwise used. Id. 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
12
Challenges to how a digital search was carried out, including claims that
law enforcement examined more data than the scope of the search categories
justified, are challenges to the execution of the warrant. But the execution of the
warrant is not at issue here.
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150 State v. Turay
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,” see id.
at 218, 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. See id.
at 219-20 (applying that standard and concluding that the
warrant to search for internet history from a specific date
was not facially unlawful).
2. Application
Again, the Court of Appeals determined that six
of the nine search categories described in the warrant to
search defendant’s cell phone failed to satisfy the constitutional particularity requirement, and the state disputes
that conclusion as to three of those categories. Before analyzing those three search categories, we first briefly describe
the three categories that the state concedes were unlawful,
to illustrate more fully the application of the particularity
requirement in the context of a warrant to search for digital
data.
a. Second, seventh, and ninth search categories
The Court of Appeals concluded that the second,
seventh, and ninth search categories lacked the specificity
necessary to satisfy the particularity requirement. Turay,
313 Or App at 58-59. Those categories authorized the search
for:
(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.”
(9) “Any other evidence related to the crimes of Prostitution
…, Promoting Prostitution … and/or Compelling
Prostitution ….”
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Cite as 371 Or 128 (2023) 151
The state has not challenged the Court of Appeals’ conclusions regarding those categories, but we offer a few
observations.
The second category authorized the search for data
“related to the relationship” between J, Gregg, “and/or”
defendant. We agree with the Court of Appeals that the lack
of any restriction “on the time or subject matter of the information that [was] sought” made that description “insufficient to apprise an executing officer of which information
was or was not subject to the warrant.” Id. As that court
explained, the lack of a time limitation caused the search
category to be “disconnected from the specific crime of investigation,” and the phrase “evidence related to the relationship” describes a category “so broad that nearly anything
could be contemplated.” Id.13
The seventh category sought information from
defendant’s cell phone about any use of Uber, ride sharing,
or taxicab companies, at any time, in any location, in any
circumstance, and the ninth category sought “[a]ny other
evidence” relating to prostitution-related crimes. As the
Court of Appeals observed, those categories 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 about time periods and physical locations were known to the investigating detective.
Id. at 59. We agree with the Court of Appeals that, as a result,
both the seventh and ninth categories lacked the specificity
necessary to satisfy the particularity requirement. And we
further emphasize that the ninth search category failed to
describe the evidence sought with any specificity—let alone
with as much specificity as reasonably possible under the
circumstances—so as to limit the enhanced risk of intrusion into defendant’s privacy interests. See Mansor, 363 Or
at 213-14 (rejecting a similar argument from the state that
13
Although the Court of Appeals faulted the second category as “so broad
that nearly anything could be contemplated,” Turay, 313 Or App at 59 (emphasis added), we emphasize that the crux of that determination focused on a lack
of specificity, not “overbreadth” in the sense that the description reached more
broadly “than the supporting affidavit supplies probable cause to justify.” See
Mansor, 363 Or at 212 (internal quotation marks omitted).
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152 State v. Turay
a warrant that authorizes the search of a computer for “evidence of a particular crime” is, in itself, sufficiently specific).
b. First, fourth, and eighth categories
With the benefit of that illustration offered by the
three search categories that more clearly failed to provide
the required degree of specificity necessary to satisfy that
component of the particularity requirement, we turn to the
three search categories that are in dispute:
(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.”
(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 state insists that all three search categories were sufficiently specific, but its arguments rely in part on its framing
of the specificity requirement that we have rejected above.
See 371 Or at 145 (rejecting the state’s argument that a
warrant will be sufficiently specific as long as its description permits law enforcement to identify with a reasonable
degree of certainty whether a given piece of data falls within
the search category, no matter how broad the scope of the
description). Applying the standard that we have identified, we agree with the Court of Appeals that the first and
eighth search categories did not satisfy the particularity
requirement.
The first category describes the information sought
as “[a]ny and all communications” between J, Gregg, and
defendant, regardless of whether that communication was
reasonably linked to evidence of the crimes of prostitution, promoting prostitution, or compelling prostitution.
(Emphasis added.) As the Court of Appeals emphasized, the
first category did not include any restriction “on the time or
subject matter of the information sought.” Turay, 313 Or App
at 58. Given what officers knew about the criminal activity
under investigation, the warrant could have more specifically described the first category of information sought as
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Cite as 371 Or 128 (2023) 153
limited to communications “involving prostitution related
activities” or communications “that relate to internet postings or advertisements,” but it did not.
Although the state insists that the first category
“allowed a reasonable degree of certainty as to whether a
given piece of data falls within its reach,” we have emphasized that more is required in the context of a search for
digital data. As we explained in Mansor, to ensure that the
governmental intrusion into a defendant’s privacy interests in digital data is as limited “as reasonably possible
under the circumstances,” the particularity requirement of
Article I, section 9, requires a warrant to search digital data
to “describe the information the state seeks (the ‘what’) with
as much specificity as reasonably possible under the circumstances, including, if available and relevant, a temporal
description of when the information was created, accessed,
or otherwise used.” 363 Or at 222.14 Thus, as emphasized
earlier in this opinion, even a description that provides sufficient direction to law enforcement may fail the specificity
requirement if it does not limit the governmental intrusion
as much “as reasonably possible under the circumstances.”
Because the first category did not restrict the search for
communications with as much specificity as reasonably possible under the circumstances, it failed to satisfy the particularity requirement.
In addition, the first search category failed to satisfy
the other component of the particularity requirement: By
purporting to authorize a search for “[a]ny and all communications” between Gregg and defendant—whom the affidavit described as having been in a relationship that was not
limited to illegal activity—the first search category authorized a search for information beyond the scope of what the
affidavit supplied probable cause to justify. By contrast, the
similar authorization to search for communications between
14
We emphasize that Mansor’s description of the particularity requirement, when applied to warrants to search for digital data, assumes that the
“intrusion”—the officer’s acquisition of the proverbial “haystack” in which the
needle will be found—will include “at least some information that is beyond the
scope of the warrant,” 363 Or at 220, but the scope of that intrusion is still limited
by the requirement that the information sought must be described with as much
specificity “as reasonably possible in the circumstances.” Id. at 218.
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154 State v. Turay
either Gregg or defendant and J stayed within the scope
supported by probable cause because, viewed as a whole,
the affidavit described essentially the sole reason for the
relationships—and thus, communications—between J and
defendant, and between J and Gregg, to be for the purpose
of engaging in prostitution-related activities.15
We also agree with the Court of Appeals that the
eighth search category—evidence regarding the locations,
including geolocation information, of defendant’s cell phones
for a defined period of time—failed to describe the information sought with sufficient particularity. Turay, 313 Or App
at 59-60. Of course, that description did include a general
temporal limitation—the 12-week period in which J had
known Gregg and defendant. And it did provide a description of the type of information sought—evidence of location,
including geolocation, of defendant’s phone during that time
frame. But describing the information sought as “any evidence regarding” the phone’s location over a 12-week period
nonetheless omitted additional limiting factors that were
known to law enforcement. Given the nature of the activity being investigated—prostitution activity—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. Stated another way,
in the circumstances here, the warrant did not describe
the eighth category of evidence “as specifically as reasonably possible in the circumstances,” because it did not limit
the enhanced risk of extensive intrusion into defendant’s
15
The affidavit described that J met Gregg about 12 weeks before defendant’s
arrest; that Gregg had introduced J to defendant and to prostitution, including
how to post advertisements online; that online advertisements had included a
photograph of J and Gregg, posing in front of a car that resembled the car that
defendant had been driving on the day of his arrest; that J had earned most of
her money engaging in prostitution by going on “duo” engagements with Gregg;
that Gregg took and kept the money that they made together and that J assumed
that Gregg later gave the money to defendant; that the three had lived together
for a time at Gregg’s home, with many of J and Gregg’s prostitution engagements
occurring there; that J “[did] prostitution dates” for defendant; and that, at the
time of his arrest, defendant had been holding funds that J had earned from
a recent engagement. Thus, the first category, although insufficiently specific,
was not overbroad with regard to communications between J and defendant and
between J and Gregg.
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Cite as 371 Or 128 (2023) 155
privacy interests that would occur upon execution of the
warrant.16
We agree with the state, however, that the Court of
Appeals erred in concluding that the fourth search category—
any photos of J, defendant, or Gregg that showed an association with prostitution, including any profiting from prostitution—did not satisfy the particularity requirement. The
Court of Appeals concluded, as to specificity, that the “vague
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 on defendant’s cell phone. Turay, 313 Or App at 63.
But that phrasing—while not ideal—set out with as much
specificity as reasonably possible in the circumstances the
information that law enforcement believed would be found
on defendant’s cell phone. By its nature, the word “prostitution” narrowed the evidence sought to only photos that
suggested prostitution-related activities (or related profiting
activities), not merely sexually explicit photos of any sort.
And, as noted, that description narrowed the range of photos sought to those of only the three individuals extensively
described in the affidavit—J, Gregg, and defendant. In the
circumstances, that description provided sufficient direction
to law enforcement and limited the enhanced risk of intrusion into defendant’s personal privacy interests, and thus
was sufficiently specific. And, because that description also
was within the scope of the probable cause that the affidavit
supported, it satisfied the particularity requirement.
c. Summary of particularity requirement analysis
In sum, the following aspects of the warrant to
search defendant’s cell phone either satisfied the constitutional particularity requirement, or were determined to
satisfy that requirement by the Court of Appeals with no
challenge on review:
16
The state contends that, in assessing the eighth described category as
unduly broad, the Court of Appeals may have been more concerned with overbreadth than specificity. But we do not read the Court of Appeals’ decision as
concluding that the eighth category fell short as to overbreadth; rather, the Court
of Appeals concluded—and we agree—that the wide-ranging scope of information described fell short on specificity. See Turay, 313 Or App at 59 (“The eighth
command … likewise lacks specificity[.]” (Emphasis added.)).
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156 State v. Turay
(3) “Evidence regarding any communications (voice,
email, text, or otherwise) involving prostitution
related activities.”
(4) “Any photos of [J, defendant, or Gregg] that show an
association with prostitution including any profiting
from prostitution.”
(5) “Images, videos and/or data which depict [J or Gregg]
in sexually explicit positions or conduct that relate to
internet postings or advertisements.”
(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.”
By contrast, the following fell short:
(1) “Any and all communications (voice, email, text,
or otherwise)” between [J, defendant,] and/or …
Gregg.”
(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.”
(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.”
(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).”
We turn next to the second question presented in
this case: Whether Article I, section 9, requires suppression
of the challenged evidence because some—but not all—of
the search categories were insufficiently particular.
C. The Extent to which Article I, section 9, Prohibited the
State from Using Evidence Obtained through Execution
of the Search Warrant
Ordinarily, a search that is “performed under authority of a warrant” is “subject to a presumption of regularity,
and the party challenging the evidence bears the burden
to prove the unlawfulness of the search or seizure.” State
v. Unger, 356 Or 59, 75,
333 P3d 1009 (2014). Conversely,
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Cite as 371 Or 128 (2023) 157
when no part of a search warrant satisfies the particularity
requirement, then any search pursuant to that warrant is
unlawful. See Blackburn/Barber, 266 Or at 35 (explaining
that, when a warrant “is sufficiently ambiguous that it is
impossible to identify with a reasonable degree of certainty
the particular premises authorized to be searched, the warrant may not be executed and any search pursuant to it is
illegal”). But we have yet to confront the question that is
the primary focus of the parties’ dispute in this case: the
extent, if any, to which evidence obtained in a search performed pursuant to a warrant can be considered lawfully
obtained when the warrant combined some search categories that satisfied the constitution’s particularity requirement with others that did not. The parties propose different rules for determining what a court must do to address
the constitutional violation in this case. Both primarily
argue that we should determine from an examination of
the warrant itself whether the challenged evidence must be
suppressed, although both advance alternative arguments
in the event that we are not persuaded that the suppression dispute can be resolved on the basis of the warrant
alone.
According to the state, under a “mixed warrant” of
this type, Article I, section 9, requires suppression of only
evidence that falls outside the scope of any lawful search
category. In other words, the state effectively argues that
the single warrant should be treated as though 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 state describes that approach
as turning on an objective inquiry that compares the nature
of the evidence obtained to the terms of the warrant, without regard to how the warrant in fact was executed. The
state contends that the most damaging of the challenged
evidence at defendant’s trial—incriminating photographs
of J and extraction reports that set out incriminating text
messages between defendant’s phone and a contact determined to be J—all fell within the scope of search categories
that describe the evidence sought with sufficient particularity: the third (evidence regarding any communications
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158 State v. Turay
involving prostitution-related activities); the fourth (photos
of J, defendant, or Gregg showing an association with prostitution, including profiting therefrom); and the fifth (images
depicting J or Gregg in sexually explicit positions or conduct relating to internet postings or advertisements). And
the state further argues that any other text message evidence admitted at trial was either substantively harmless
or cumulative considering similar unchallenged evidence
obtained from J’s cell phone.
According to defendant, however, it is irrelevant
that some search categories may have described evidence
with sufficient particularity, because the unlawful “catchall” categories—including the second, which sought “[e]vidence related to the relationship between [J, Gregg,] and/or
[defendant],” and the ninth, which authorized a search for
“any other” evidence of prostitution—allowed such an extensive invasion of his privacy that the warrant was entirely
invalid. As a result, defendant contends, the entire search of
his phone was unlawful, and all evidence obtained from his
phone must be suppressed.
As we will explain, however, neither party’s argument is entirely consistent with this court’s prior decisions
under Article I, section 9, which—in cases involving some
established constitutional violation—have determined what
evidence must be suppressed by considering how and why
that evidence was discovered. See, e.g., State v. DeJong, 368
Or 640, 642,
497 P3d 710 (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).
1. The state’s proposal
The state’s argument that evidence is lawfully
obtained if it falls within the scope of a lawful search category relies, to a significant extent, on a passage from Mansor,
mentioned earlier, in which this court required a restriction
on the “use” of digital data obtained during a search pursuant to a warrant. In Mansor, we explained that, “when
the state conducts a reasonably targeted search of a person’s computer for information pursuant to a warrant that
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Cite as 371 Or 128 (2023) 159
properly identifies the information being sought, the state
has not unreasonably invaded the person’s privacy interest.”
363 Or at 221. In such circumstances, we continued, “the
state may use the information identified in the warrant in a
prosecution or any other lawful manner.” Id. “But 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.” Id. The state characterizes that aspect of Mansor
as imposing a “use” restriction that permits the state to
“use” (i.e., admit against a defendant) any evidence obtained
through a search supported by a lawful warrant.
But Mansor did not answer the question with which
we are presented in this case, because the search in Mansor
was based on a warrant that lawfully authorized a search for
a single category of evidence, not one that included a lawful
search category combined with an unlawful category. The
approach that this court adopted in Mansor resolved the
tension between the principle that it is “lawful and appropriate” for the state to conduct “a reasonably targeted search of
a person’s computer for information pursuant to a warrant
that properly identifies the information being sought,” and
the practical reality that even reasonably targeted searches
pursuant to a warrant “necessarily may require examination of at least some information that is beyond the scope of
the warrant.” Id. at 220-21. Under those circumstances, the
state has not violated a defendant’s rights under Article I,
section 9, and, therefore, “the state may use the information
identified in the warrant in a prosecution or any other lawful manner.” Id. at 221. In that context, we imposed a limitation on the state’s use of evidence out of recognition that,
although a warrant to search for digital data may be lawful, the execution of that lawful warrant might require the
examination of some information that is beyond the scope of
the warrant and invades the individual’s privacy interests.
Id. at 220-21.
Unlike Mansor, in which this court fashioned a rule
to address the possibility that the defendant’s privacy may be
lawfully invaded during the course of “a reasonably targeted
search” based on an entirely lawful warrant, this case requires
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160 State v. Turay
a rule that addresses the certainty that defendant’s privacy
was unlawfully invaded during the course of a search that was
based on a warrant that contained multiple unlawful search
categories. Importantly, as we explained in Mansor, “the purpose of rules requiring the suppression of evidence gathered in
violation of the constitution is to restore the parties to the position they would have been in had the violation not occurred.”
Id. at 221; see also State v. Davis,
295 Or 227, 237,
666 P2d 802
(1983) (explaining that the “rules of law designed to protect
citizens against unauthorized or illegal searches … are to
be given effect … by restoring the parties to their position as
if the state’s officers had remained within the limits of their
authority”).
Here, as noted at the outset, the trial record contained only minimal evidence about how the actual forensic
examination of defendant’s cell phone—that is, the execution of the search itself, pursuant to the warrant—had been
conducted. For example, the record showed that data had
been extracted using forensic examination software, but it
did not establish the nature or extent of that extraction: It
did not establish whether all data was extracted initially
or whether various extraction steps were taken, and, if so,
what those steps were. And, although the record showed that
the software had permitted law enforcement to extract certain photographic images and to retrieve the two extraction
reports showing text messaging between defendant and J,
it did not show which categories of evidence the state was
looking for when that incriminating evidence was discovered. Thus, we have no basis on which to conclude that simply ignoring the unlawful search categories would restore
defendant to the position that he would have been in had
the violation not occurred. Moreover, the state’s focus on the
scope of the lawful search categories could allow it to offer
evidence against defendant that may actually have been the
product of a constitutional violation—but Article I, section 9,
prohibits that result.
2. Defendant’s proposal
Defendant’s argument for categorically suppressing
all evidence found on his cell phone is equally problematic.
His argument rests on the premise that the unlawful search
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Cite as 371 Or 128 (2023) 161
categories in the warrant to search his cell phones were so
permissive and lacking in specificity that they “subsumed”
the lawful categories, resulting in a prohibited “general
warrant.” Under those circumstances, defendant argues,
Article I, section 9, requires us to treat the warrant as
invalid in toto and to suppress all evidence obtained during
the search pursuant to the warrant. Defendant relies on
our statement in Mansor that, without specificity, digital
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.” 363 Or at 220 (internal quotation marks omitted). And he insists that invalidating the entire warrant must be the answer because, otherwise, the state could “write and execute a general warrant
in every instance, secure in the knowledge that the inclusion of a narrower [search category] will ‘save’ the warrant.”
We agree with defendant only in part. As discussed
above, the first, second, seventh, eighth, and ninth search
categories were insufficiently particular to satisfy Article I,
section 9. The Court of Appeals concluded that the second
search category—“[e]vidence related to the relationship
between [J, Gregg,] and/or [defendant]”—“amount[ed] to a
general warrant for a search of anything incriminating.”
Turay, 313 Or App at 59. And defendant contends that a
similar criticism could be leveled at the ninth search category, which authorized an unlawful search for “[a]ny other
evidence” of prostitution crimes. Whether or not “general warrant” is the correct label, those search categories
unquestionably—and unlawfully—allowed the “undue rummaging that the particularity requirement was enacted to
preclude.” Mansor, 363 at 220. And, had the warrant included
only those insufficiently particular search categories, there
would be no question that the entire search was unlawful.
See, e.g., Blackburn/Barber, 266 Or at 35 (explaining that,
when a warrant fails to describe premises to be searched
with sufficient particularity, “any search pursuant to it is
illegal”).
As the state correctly observes, however, the warrant
in this case also included several lawful search categories.
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162 State v. Turay
We have rejected the state’s contention that it is possible
to simply ignore the violation that occurred when the state
searched defendant’s cell phone for digital data that the
warrant failed to describe with sufficient particularity. But,
given the focus of Oregon’s exclusionary rule on restoring
defendants to the position that they “would have been in
had the violation not occurred[,]” Mansor, 363 Or at 221, it
is appropriate to consider what remedy Article I, section 9,
would require if the state had not combined the lawful and
unlawful search categories in the same warrant. Had the
state, hypothetically, obtained two warrants—one containing only the sufficiently particular search categories—then
the entire search performed under that hypothetical warrant would have been presumptively lawful, and the only
question would be whether any other circumstance had
rendered the search unlawful. See State v. Walker, 350 Or
540, 554,
258 P3d 1228 (2011) (describing shifting inquiry).
Additionally, the constitutional violation that occurred when
the state searched defendant’s cell phone in an effort to find
evidence that no lawful category of the warrant authorized
it to search for might well require suppression of all evidence
obtained pursuant to that warrant, but it would not necessarily require suppression of evidence obtained from the
same phone pursuant to the sufficiently particular warrant.
In this case, of course, the state did not obtain two
warrants; it obtained a single warrant containing both
the sufficiently particular search categories and the other
categories that fell constitutionally short of authorizing a
lawful search. But we are not persuaded that the mixing
of the lawful and unlawful search categories in the same
warrant necessarily changes the analysis. The unlawful
invasion of defendant’s protected privacy interest is not
necessarily greater than if the state had searched his cell
phone pursuant to two separate warrants, and the remedy
that is required to restore defendant to the position that
he “would have been in had the violation not occurred[,]”
Mansor, 363 Or at 221, also is not necessarily greater. Thus,
we are not persuaded by defendant’s contention that all evidence found on his phone necessarily must be suppressed
as a result of the warrant’s inclusion of search categories that unlawfully allowed the “undue rummaging that
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the particularity requirement was enacted to preclude.”
Id. at 220 (internal quotation marks omitted); see also
Wayne R. LaFave, 2 Search and Seizure: A Treatise on the
Fourth Amendment § 4.6(f) (6th ed 2022) (“[I]t would be
harsh medicine indeed if a warrant issued on probable cause
and particularly describing certain items were to be invalidated in toto merely because the affiant and magistrate
erred in seeking and permitting a search for other items as
well.”).
3. What Article I, section 9, requires
As our rejection of defendant’s categorical rule suggests, to determine the extent to which evidence must be
suppressed as the product of a constitutional violation, our
case law directs us to consider what actually transpired.
The Court of Appeals recognized that the question of suppression in this case ultimately turns on how the search in
fact was executed. See Turay, 313 Or App at 66 (remanding
for “development of a record as to how the forensic search
of the phone was conducted”). But it reached that conclusion after applying “severability” principles and concluding that the unlawful search categories could be “severed”
from the warrant and the remaining categories saved. See
id. at 63-64. That is an approach that the Court of Appeals
has long followed when considering warrants that contain
a mix of sufficiently particular and insufficiently particular categories. See, e.g., id. at 63 (“Ordinarily, ‘[i]f a portion
of a search warrant fails to describe the items sought with
sufficient particularity, that portion may be excised and the
balance of the warrant upheld.’ ” (Quoting State v. Vermaas,
116 Or App 413, 416,
841 P2d 664 (1992), rev den,
316 Or
142 (1993) (brackets in Turay))). The import of that approach
is that the “balance of the warrant” containing the lawful
search categories is upheld and the search pursuant to those
search categories considered lawful. Turay, 313 Or App at
63; see also State v. Burnham,
289 Or App 783, 785,
412 P3d
1233 (2018) (trial court “did not err by admitting evidence
covered by the valid portions of the warrant”).
This court has not yet addressed whether to adopt
the “severance” doctrine at all, let alone in the context of
warrants to search for digital data. And we decline to do so
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164 State v. Turay
in this case, because—as we will explain—our existing case
law does not permit us to presume that the state lawfully
obtained any evidence through the search of defendant’s cell
phone.
Under our Article I, section 9, case law, if an evidentiary dispute involves both a warrant-based search and
unlawful police conduct, the first question is whether the
defendant can “establish a minimal factual nexus between [a
constitutional violation] and the challenged evidence”; if so,
then the second question is whether the state can “establish
that the challenged evidence was untainted by” the constitutional violation. DeJong, 368 Or at 642. In other words, when
the defendant establishes a minimal factual nexus between
a constitutional violation and challenged evidence that was
obtained pursuant to a warranted search, there is a presumption that the challenged evidence must be suppressed,
but the state has the opportunity to rebut that presumption.
State v. Johnson, 335 Or 511, 520,
73 P3d 282 (2003) (endorsing federal approach that shifts the burden to the government to prove that challenged evidence is “untainted” by a
constitutional violation, when the defendant establishes a
“factual nexus between the unlawful police conduct and the
challenged evidence” (internal citations omitted)).
For example, in Johnson, after a trial court had
ruled that the state had unlawfully seized items of clothing
belonging to the defendant, the state responded by obtaining a warrant authorizing it to seize and analyze the same
clothing, and the defendant moved to suppress. 335 Or at
514-15. We acknowledged the “oft-cited rule that, when state
agents have acted under authority of a warrant, the burden
is on the party seeking suppression,” but we held that the
“presumption of regularity” that is ordinarily afforded to a
warrant-based search “is undermined” when a defendant
is able to show that evidence obtained during the search
“is connected to some prior governmental misconduct.”
Id. at 520-21. And we concluded that the defendant in
Johnson had shown the requisite factual nexus between the
evidence and the original unlawful seizure. Id. at 521. But
we did not conclude that the unlawful seizure inherently
tainted the later seizure of the same evidence. Instead, we
accepted the state’s proposition that the defendant’s clothes
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would not be subject to suppression if the state proved that
“the warrant that the police ultimately obtained truly was
independent of the earlier illegal seizure,” although we ultimately affirmed the trial court’s finding that the state’s evidence was not sufficiently persuasive. Id. at 522, 526.
We applied that “minimal factual nexus” approach
more recently in DeJong, which involved a lawful search
based on a warrant that law enforcement had obtained after
unlawfully seizing the defendant’s home and speaking with
another resident. 368 Or at 643-44. We reiterated that the
“[d]efendant’s burden of establishing a factual nexus is minimal and intended merely to rebut the presumption of regularity attendant to warranted searches.” Id. at 654-55 (emphasis
in original). And we concluded that the defendant in DeJong
had met that minimal burden by showing that the unlawful
seizure of her residence had allowed officers to obtain statements from the other resident, which they then had used
to obtain the warrant. Id. Given that nexus, we considered
whether the state had met its burden to establish that the
evidence it discovered during the search pursuant to the
warrant “was untainted by the preceding unlawful seizure
of defendant’s residence,” but we ultimately concluded that
the state’s evidence was legally insufficient to permit a finding that it had met its burden. Id. at 656, 659. Accordingly,
Article I, section 9, required suppression of the evidence. Id.
Those principles are applicable to this case.
Admittedly, there are factual differences between cases
applying the “minimal factual nexus” test, where the constitutional violation preceded the lawful warranted search,
and the search of defendant’s cell phone here, which was
conducted pursuant to a warrant that included unlawful
search categories. But we are not persuaded that those
potential chronological distinctions alter the relevance of
the minimal factual nexus test. As in cases describing that
test, the state here obtained a warrant supported by probable cause to conduct the search at issue, but it also violated
defendant’s Article I, section 9, rights when it extracted and
examined data from defendant’s phone in an effort to find
evidence that no lawful category of the warrant authorized
it to search for. Accordingly, we will not presume that any
of the evidence was lawfully obtained, so long as defendant
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166 State v. Turay
has established a minimal factual nexus between that constitutional violation and the challenged evidence.
4. Application of the minimal factual nexus test
As we explained in DeJong, the defendant’s “burden of establishing a factual nexus is minimal and intended
merely to rebut the presumption of regularity attendant to
warranted searches.” 368 Or at 654-55 (emphasis in original). Accordingly, the threshold question asks only if the
defendant has shown “that the evidence obtained ‘is connected to some prior governmental misconduct.’ ” Id. at 651
(quoting Johnson, 335 Or at 521 (emphasis in DeJong)). We
emphasized that “satisfying that minimal standard does not
require a defendant to identify and produce evidence related
to discrete factual theories connecting the unlawful conduct
with the challenged evidence.” Id. at 655.
Applying those principles here, it is apparent that
there is a minimal factual nexus between the constitutional
violation and the challenged evidence, because the state
found the evidence during the execution of a single search
warrant that purported to authorize the state to extract and
examine data from defendant’s cell phone in an effort to find
evidence that it had no lawful authority to search for. In
other words, given the nature of a search for digital data,
everything obtained from defendant’s phone is connected—
to some extent—to the search categories described in the
warrant, some of which purported to authorize unconstitutional “rummaging” through the data on that phone. See
Mansor, 363 Or at 220. Those unlawful categories included
“[e]vidence related to the relationship between [J, Gregg,]
and/or [defendant]” and “[a]ny other evidence” of prostitution-related crimes, and those descriptions could easily apply to
the incriminating images and text messages that the state
introduced below. Thus, the execution of the warrant establishes as much connection as can be identified absent evidence of how the search actually was conducted. As only
the state is in a position to know how the search actually
was conducted, we conclude that defendant has established
the minimal factual nexus required to shift the burden to
the state to demonstrate that the challenged evidence was
untainted by the constitutional violation.
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5. The proper disposition
Ordinarily, our conclusion that there is a minimal
factual nexus between the constitutional violation and the
challenged evidence would take us to the next step set out
in DeJong and Johnson: a determination whether the state
met its burden to establish that the challenged evidence was
untainted by the constitutional violation. It is undisputed,
however, that the existing record precludes a resolution
of that question, because the record contains no evidence
regarding how the unlawful search categories in the warrant affected the data that the state extracted from defendant’s cell phone.
The Court of Appeals concluded that the proper disposition was a “remand for development of a record as to how
the forensic search of the phone was conducted.” Turay, 313
Or App at 66. And it explained that the question on remand
was whether the challenged evidence “was discovered while
police were executing one of the lawful search commands as
opposed to one of the invalid commands.” Id. Both aspects of
that remand instruction are in dispute.
The state understands the Court of Appeals to
have held that the evidence must be suppressed unless the
state can demonstrate that it, in fact, separately executed a
search for each category of evidence and actually obtained
the challenged evidence while executing a search for one of
the sufficiently particular categories. At oral argument, the
state insisted that that test is too limited and reflects a misunderstanding of how digital search warrants are executed.
Defendant, on the other hand, agrees with the Court
of Appeals that any factual inquiry on remand should be limited to whether the state can show that it actually discovered
the evidence while police were executing one of the lawful
search categories. But he primarily contends that this court
should reverse without remanding, because he insists that
the state had the opportunity to develop a record below and
should not be given another opportunity on remand.
We turn first to the question that will affect future
similar cases—whether evidence collected during the
execution of a warrant that, in part, failed to satisfy the
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168 State v. Turay
particularity requirement must be suppressed unless
the state can prove that it in fact separately executed the
lawful search categories of the warrant and discovered
the challenged evidence while executing one of the lawful
search categories. We agree with the state that the remand
instruction from the Court of Appeals unduly constrains
how the state may meet its burden to avoid suppression.
As explained above, when there is a minimal factual nexus
between a constitutional violation and evidence found pursuant to a search warrant, the evidence must be suppressed
unless the state can “establish that the challenged evidence
was untainted by” the constitutional violation. DeJong, 368
Or at 642. Here, as explained above, the constitutional violation was the state’s extraction and examination of data
from defendant’s cell phone in an effort to find evidence that
no lawful category of the warrant authorized it to search
for, and that violation bears a minimal factual nexus to
all the evidence found on defendant’s phone. Thus, 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 may
be, as the Court of Appeals reasoned, that the state can
meet its burden in cases like this—involving warrants to
search for digital data—only with proof 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.” Turay, 313 Or App at 66. But it is
premature to predict whether that is the only showing that
will satisfy the state’s burden of proof, and we decline to do
so.17
The remaining question is whether the state should
be afforded the opportunity on remand to develop a factual
record on the question whether the challenged evidence was
17
We understand the state to have expressed concern that the manner in
which warrants to search for digital data are executed could make it difficult for
the state to show that a particular search category did not affect the discovery of
particular evidence. If that continues to be true, then it is particularly important
that law enforcement avoid requesting, and magistrates avoid issuing, warrants
that include the kind of search categories that the state now concedes were insufficiently particular.
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Cite as 371 Or 128 (2023) 169
untainted by the constitutional violation. We agree with the
Court of Appeals, as a general matter, that that is the appropriate disposition in this case. Although defendant contends
that the state already has had the opportunity to develop a
record and is not entitled to an additional opportunity, defendant’s arguments in the trial court contended only that the
warrant was unlawful in its entirety. The possibility that the
warrant may have contained some lawful search categories,
and that those lawful categories might allow the state to
rely on some of the challenged evidence, arose following issuance of the Court of Appeals decision. Those are issues that
this court has not previously addressed. And, in addressing
them now, we have held for the first time that the unlawful
search categories establish that all the challenged evidence
is presumptively a product of the constitutional violation as
to particularity, but that defendant is not entitled to suppression if the state can prove that the challenged evidence
was untainted by that violation. In other words, given defendant’s arguments in the trial court, questions about how the
search was or would have been conducted were irrelevant.
Neither party had the opportunity below to address the standard that we have now identified as governing whether the
challenged evidence must be suppressed when a warrant
contains some search categories that satisfy the particularity requirement and others that do not. And neither party
was alerted to the need to create a factual record to determine whether, under that standard, the evidence must be
suppressed. Thus, it is appropriate to remand for the trial
court to determine which, if any, of the challenged evidence
must be suppressed under Article I, section 9. See State v.
Mills, 354 Or 350, 373-74,
312 P3d 515 (2013) (after overruling prior case law that had required the state to prove venue
of the offense beyond a reasonable doubt, court remanded to
afford both parties the opportunity to present evidence on
the question of the appropriate venue).
III. CONCLUSION
We conclude that five of the nine search categories
in the warrant to search defendant’s cell phone unlawfully
authorized a search for evidence that was not described with
sufficient specificity to satisfy the particularity requirement set out in Article I, section 9, and paved the way for
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170 State v. Turay
unconstitutional exploratory rummaging, including for
“[a]ny other evidence” of prostitution crimes. We also conclude that there was a minimal factual nexus—between
the state’s extraction and examination of data from defendant’s phone in an effort to find evidence that no lawful category of the warrant authorized it to search for, and all evidence found during the search—that requires the evidence
obtained through the search to be suppressed, unless the
state can prove that that evidence was untainted by the constitutional violation. Those conclusions require us to reverse
the decision of the trial court. And, given the procedural circumstances of this case, we conclude that it is appropriate to
remand for the development of a factual record, and for the
trial court to make findings, regarding the standard that
we have articulated.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.
DUNCAN, J., concurring.
I concur in the majority’s opinion, which concludes
that the warrant in this case includes invalid search categories and remands the case to the trial court for further
proceedings. I write separately to highlight the law relevant
on remand.
Article I, section 9, of the Oregon Constitution protects individuals against unreasonable government searches
and seizures, and it requires that warrants be based on
“probable cause” and “particularly describ[e] the place to be
searched, and the person or thing to be seized.”
This case concerns Article I, section 9’s particularity requirement in the context of searches for digital
information, a subject that this court addressed in State v.
Mansor, 363 Or 185,
421 P3d 323 (2018). As we explained in
Mansor, “[o]ur cases have identified two related, but distinct,
concepts that inform the particularity analysis—specificity
and overbreadth.” Id. at 212. “A warrant must be sufficiently
specific in describing the items to be seized and examined
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[so] that the officers can, ‘with reasonable effort ascertain’
those items to a ‘reasonable degree of certainty.’ ” Id. (quoting State v. Blackburn/Barber,
266 Or 28, 35,
511 P2d 381
(1973)). “But, even if the warrant is sufficiently specific, it
must not authorize a search that is ‘broader than the supporting affidavit supplies probable cause to justify.’ ” Mansor,
363 Or at 212 (quoting State v. Reid,
319 Or 65, 71,
872 P2d
416 (1994)).
In addition, warrants to search computers or other
digital devices are subject to a heightened specificity requirement: They 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 the information was created, accessed, or
otherwise used.” Mansor, 363 Or at 218. That heightened
specificity requirement exists because of the unique characteristics of computers and other digital devices, which contain vast amounts of data of different types and on different
subjects. Id. at 201-02 (describing unique characteristics of
computers and other digital devices, including cell phones);
see also id. at 202 (quoting Riley v. California,
573 US 373,
396-97, 134 S Ct 2473,
189 L Ed 2d 430 (2014), for the proposition that “a cell phone search would typically expose to
the government far more than the most exhaustive search
of a house: A phone not only contains in digital form many
sensitive records previously found in the home; it also contains a broad array of private information never found in
a home in any form—unless the phone is” (emphasis in
original).).
Not only are warrants to search computers or other
digital devices subject to a heightened specificity requirement, there is a limit on what information resulting from the
execution of such warrants can be used by the state. Mansor,
363 Or at 220-23. As we explained in Mansor, as a result of
the way that information is stored on digital devices, officers
executing a search warrant may have to examine digital
information to determine whether it is the type specified in
the warrant. Id. at 217-18. To account for that possibility, the
state is not allowed to use evidence found during a search
of a digital device “unless a valid warrant authorized the
search for that particular evidence, or it is admissible under
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172 State v. Turay
an exception to the warrant requirement.” Id. at 188;
id. at
221. As we explained,
“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.’ [State v.] Mansor,
279 Or App [778,] 803[, 381 P3d 930 (2016)] (internal quotation marks omitted). 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 220-21 (emphasis added). Thus, under
Mansor, even if a warrant is valid, the state may not use digital information obtained as a result of the execution of the
warrant unless the warrant authorized the search for “that
particular evidence” or the evidence “is admissible under an
exception to the warrant requirement.” Id. at 188.
Unlike Mansor, this case involves a warrant with
invalid search categories. As the majority states, several
of the search categories “failed to satisfy the constitutional particularity requirement and, thus, … those categories failed to authorize a lawful search.” 371 Or at 130.
Nevertheless, Mansor is relevant, because it establishes the
requirements that must be satisfied in order for evidence
obtained pursuant to a warrant to be admissible when all
of the search categories are valid, and the requirements
cannot be lower for a warrant that contains invalid search
categories. Thus, on remand, the trial court cannot admit
any evidence derived from the execution of a warrant unless
the warrant “authorized the search for that particular evidence, or it is admissible under an exception to the warrant
requirement.” Mansor, 363 Or at 188.
128_371.indd 172 6/15/2023 7:32:04 AM
Cite as 371 Or 128 (2023) 173
Consequently, on remand, the only evidence that
the trial court could possibly admit is evidence that satisfies Mansor; that is, evidence that was either (1) particularly
described by a valid search category and discovered during
a “reasonably executed” search, id. at 218 n 15, or (2) is
admissible under an exception to the warrant requirement.
Moreover, even if the evidence satisfies Mansor, it must also
satisfy the additional requirement established by the majority’s opinion in this case. As the majority concludes, because
the warrant contained invalid search categories, evidence
obtained as a result of the execution of the warrant is inadmissible unless the state can prove that the evidence is not
tainted by those invalid search categories. 371 Or at 166-67.
When determining whether the evidence is tainted,
the court should consider, among other things, how the evidence was discovered, including whether the evidence was
discovered during, after, or otherwise as a result of a search
for evidence in one of the invalid search categories. Id. at
161-62 (stating that the searches conducted pursuant to
the invalid search categories would be unauthorized); see
Mansor, 363 Or at 221 (“ ‘[R]ules of law designed to protect
citizens against unauthorized or illegal searches or seizures
of their persons, property, or private effects are to be given
effect by denying the state the use of evidence secured in
violation of those rules against the persons whose rights
were violated, or, in effect, by restoring the parties to their
position as if the state’s officers had remained within the
limits of their authority.’ ” (Quoting State v. Davis, 295 Or
227, 237,
666 P2d 802 (1983) (brackets in Mansor).)). Thus,
as the Court of Appeals explained in this case, “[o]n remand,
the parties can further address the manner in which this
warrant was executed and trace the discovery of the evidence that is the subject of defendant’s motion to suppress,”
to determine what evidence was lawfully discovered. State
v. Turay, 313 Or App 45, 66,
493 P3d 1058 (2021).
In addition to determining how the evidence was
discovered, the trial court should consider whether the warrant was intended to be, or was used as, a warrant akin to
a “general warrant,” which Article I, section 9, was meant to
prohibit. Blackburn/Barber, 266 Or at 34 (stating that “the
128_371.indd 173 6/15/2023 7:32:05 AM
174 State v. Turay
historical motivation for [Article I, section 9,] was a fear of
‘general warrants,’ giving the bearer an unlimited authority
to search and seize” (internal quotation marks omitted)). The
particularity requirement was enacted to preclude “undue
rummaging,” and if a warrant was obtained to authorize, or
was used to conduct, “undue rummaging,” evidence obtained
pursuant to the warrant must be suppressed, in order to
effectuate the purpose of Article I, section 9, which is to protect against government conduct that “would significantly
impair an individual’s interest in freedom from scrutiny,
i.e., his privacy.” Mansor, 363 Or at 206-07 (internal quotation marks and citation omitted); see also Turay,
313 Or App
at 64 (“ ‘We recognize the danger that warrants might be
obtained which are essentially general in character but as
to minor items meet the requirement of particularity, and
that wholesale seizures might be made under them, in the
expectation that the seizure would in any event be upheld as
to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated.’ ” (Quoting Aday v.
Superior Court, 55 Cal 2d 789, 797, 362 P2d 47, 52 (1961).));
State v. Sanger, 12 Or App 459, 471 n 6,
506 P2d 510 (1973)
(also citing Aday for that proposition).
In sum, on remand, the trial court should determine
whether the evidence at issue satisfies Mansor, and, if it does,
whether the state has proven that, despite the presumptive
taint that follows from that fact that the warrant included
invalid search categories, the state has carried is burden
of rebutting that presumption. When determining whether
the state has done so, the trial court should consider, among
other things, whether the evidence was obtained in, or as a
result of, a search for evidence in an invalid search category
and whether the warrant was intended to authorize, or was
used to conduct, unconstitutional “undue rummaging.”
Walters, S. J., joins in this concurring opinion.
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