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State v. Rose

Court of Appeals of Oregon

July 2, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
WAYNE ELLIOTT ROSE, Defendant-Appellant

Submitted July 30, 2013.

Polk County Circuit Court 10P3394. Fred E. Avera, Judge.

Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 681

[264 Or.App. 97] NAKAMOTO, J.

In this criminal case, defendant appeals a judgment convicting him of using a child in a display of sexually explicit conduct, ORS 163.670.[1] Defendant had an e-mail account with Yahoo!, Inc. (Yahoo), a California-based company. Pursuant to a search warrant issued by an Oregon circuit court, Yahoo disclosed defendant's e-mails to the police, including two e-mails containing photographs

Page 682

of the victim's breasts. Defendant assigns error to the trial court's denial of his motion to suppress, contending that the warrant was invalid because (1) the circuit court did not have authority under ORS 136.583 to issue a search warrant to be executed outside of Oregon and (2) even if it did, the warrant was insufficiently particular.[2] We conclude that, under ORS 136.583, the circuit court had the authority to issue the out-of-state warrant and that the warrant was sufficiently particular. Accordingly, we affirm.

We first summarize the facts at trial that formed the basis for defendant's conviction. The victim, a 16-year-old girl, conversed with defendant, her friend's stepfather, through Facebook, MySpace, instant messaging, e-mails, and telephone calls. In June 2010, the victim offered to send defendant a photograph of her breasts. Defendant e-mailed the victim a photograph of his bare chest in June. Several hours later, the victim e-mailed defendant a photograph of her bare chest and then shortly afterward, because she was not satisfied with the first one, e-mailed a second photograph of her bare chest. The victim had taken the photographs of herself at home.

[264 Or.App. 98] The remaining facts in this case, taken from the suppression hearing, State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993) (explaining that we are bound by the trial court's findings of fact if they are supported by evidence in the record; we review for legal error), are undisputed and mainly procedural. Detective Pitt of the Polk County Sheriff's Office had probable cause to believe that the victim had sent photographs of her breasts to defendant through e-mail. Pitt applied for a search warrant seeking the e-mail records of defendant's and the victim's e-mail accounts through Yahoo, intending to find the photographs. Pitt stated in his supporting affidavit that he spoke to the victim on July 22, 2010, and that she told him that she and defendant had known each other for several years and that they had been communicating over the last few months via telephone, e-mails, and instant-messaging chats online. The victim also told Pitt that during her conversations with defendant they had discussed sexually explicit details.

The circuit court issued the search warrant. The warrant stated that there was probable cause to believe that evidence of the crime of using a child in display of sexually explicit conduct and encouraging child sexual abuse was presently located in " [a]ny computer database controlled or owned by Yahoo Inc. which is accessed by the Legal Compliance Team located at 701 First Avenue, Sunnyvale, California 94089." Although Pitt was focusing his investigation on a period in 2010, the warrant authorized the officers to search and seize the following items, including all of defendant's e-mails:

" Any and all records regarding the identification of a user with the Yahoo! ID [defendant's user name] or Yahoo! Email account [defendant's e-mail address]@yahoo.com, to include name and address; Yahoo! Email address; alternate mail address; IP address and date and time of registration; account status; and log-in IP addresses associated with session times and dates. Any and all contents of electronic files that the above subscriber has stored in the subscriber's Yahoo! Account. Any and all Yahoo! IDs listed on the subscriber's Friends list."

Pitt faxed the search warrant to the Yahoo legal compliance team in California. In response to the search [264 Or.App. 99] warrant, Yahoo sent Pitt a computer disk containing the requested information, including large quantities of e-mail. Pitt then searched the e-mail records it contained, concentrating on the e-mails from June and July 2010. Pitt found

Page 683

the two photographs of the victim's breasts among the e-mails.

Defendant moved to suppress the photographs before trial. He argued that the warrant was invalid because it was not statutorily authorized and that, in any event, the warrant was insufficiently particular. The trial court ruled that ORS 136.583 authorized the issuance of the warrant and appears to have rejected without discussion defendant's " insufficient particularity" argument. Defendant ultimately was convicted of using a child in a display of sexually explicit conduct, ORS 163.670, based on the first photograph.

On appeal, defendant assigns error to the trial court's denial of his motion to suppress and renews his two arguments.[3] We first address defendant's argument that, contrary to the trial court's ruling, the circuit court lacked authority to authorize an out-of-state ...


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