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State v. Burnham

Court of Appeals of Oregon

September 7, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSHUAH SHAILEN BURNHAM, Defendant-Appellant.

          Argued and submitted April 13, 2016.

         Lincoln County Circuit Court 130104; Mary Mertens James, Judge.

          Jesse Wm. Barton argued the cause and fled the brief for appellant.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals a judgment of conviction for two counts of hunting upon the cultivated or enclosed land of another without permission, ORS 498.120; two counts of second-degree criminal trespass, ORS 164.245; one count of violating a provision of the wildlife laws or rules with a culpable mental state, ORS 496.992(1); and two counts of third-degree theft, ORS 164.043. Defendant assigns error to the trial court's denial of his motion to suppress evidence, arguing that the search warrant executed in his residence was overbroad in violation of Article I, section 9, of the Oregon Constitution because the supporting affidavit did not substantiate probable cause to believe that evidence of illegal hunting would be found on defendant's laptop and other personal electronic devices. Held: The trial court erred in denying defendant's motion to suppress because the warrant was impermissibly overbroad. The only concrete factual link between the crimes under investigation and the multiple electronic devices covered by the warrant was the likely presence of incriminating data on a single device, defendant's cellular phone. The affiant's invocation of his training and experience as a fish and wildlife officer was insufficient to establish a probability that the relevant data had been transmitted from defendant's phone to all of the electronic devices included in the warrant.

         [287 Or. 662]

          GARRETT, J.

         Defendant appeals a judgment of conviction for two counts of hunting upon the cultivated or enclosed land of another without permission, ORS 498.120; two counts of second-degree criminal trespass, ORS 164.245; one count of violating a provision of the wildlife laws or rules with a culpable mental state, ORS 496.992(1); and two counts of third-degree theft, ORS 164.043. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence that was obtained as a result of the execution of a search warrant. Defendant argues, among other things, that the search warrant was overbroad in violation of Article I, section 9, of the Oregon Constitution. We agree with defendant that the search warrant was impermissibly overbroad for reasons articulated in our recent decisions in State v. Friddle, 281 Or.App. 130, 381 P.3d 979 (2016), and State v. Mansor, 279 Or.App. 778, 381 P.3d 930 (2016), rev allowed, 360 Or. 752 (2017). Accordingly, we reverse the judgment on all counts.[1]

         We review a challenge to the validity of a search warrant for legal error. State v. Castilleja, 345 Or. 255, 264, 192 P.3d 1283, adh'd to on recons, 345 Or. 473, 198 P.3d 937 (2008). We state the uncontroverted facts as recited in the search-warrant affidavit. Friddle, 281 Or.App. at 131.

         Oregon State Police received information that, in August 2012, defendant had trespassed on land owned by Plum Creek Timber Company and killed an elk while hunting there without permission. In December 2012, officers in the Fish and Wildlife Division of the Oregon State Police made contact with a person named Martin, who informed them that he and defendant had entered Plum Creek's property through a closed gate on August 26 and hunted there. Martin also said that, on August 27, defendant contacted him to ask for help in tracking an elk that he had shot and could not locate, and, on August 28, Martin and defendant again entered Plum Creek's property to search for the dead elk. Martin told the police that defendant had pointed out [287 Or. 663] where he had been standing when he shot the elk and where the elk was standing when it had been shot. According to Martin, the two followed tracks and a blood trail to locate the elk, and Martin used defendant's cellular phone to take photos of defendant with the elk at the location where the elk had died. Martin also told the police that defendant had posted the photos on his Facebook page.

         Martin subsequently accompanied two officers onto Plum Creek's property, pointing out the locations where defendant said he had been standing when he shot the elk, where the elk had been standing, and where the elk had died. One of the officers recorded GPS coordinates for each of the locations, and he determined that, if Martin's description was accurate, defendant had shot the elk while both he and the elk were located on Plum Creek's property. The officer also determined that the elk had died on a different landowner's property.

         Based on that information, Kehr, a fish and wildlife officer, obtained a search warrant for defendant's residence. The warrant authorized officers to seize and search the contents of "any and all" of defendant's "computer equipment" and "electronic data devices, " including "any data processing hardware and storage devices, cell phones, computers, laptops, notebooks, computer systems, " and "any other computer storage media that contains information of illegally obtained or possessed wildlife or parts thereof."

         In a supporting affidavit, Kehr averred that, based on his "training and experience as a fish and wildlife officer, " it is "customary and traditional" for a hunter to retain photographs of harvested wildlife and to store those photos in "various formats, " including in "computer media devices" and "laptops." Kehr further averred that, based on his training and experience, when a cellular phone is used to take photos, "often times the phone will store the date, time, and a geographical location when the function was performed, " and that ...


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