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State v. Cannon

Court of Appeals of Oregon

October 2, 2019

STATE OF OREGON, Plaintiff-Appellant,
v.
DAVID LEE CANNON, Defendant-Respondent.

          Argued and submitted May 3, 2019

          Lincoln County Circuit Court 18CR08044; Thomas O. Branford, Judge.

          Joanna L. Jenkins, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Laura A. Frikert, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: The state appeals from a pretrial order granting defendant's motion to suppress seven images of child pornography found on defendant's cell phone during a forensic examination of various electronic devices authorized by a search warrant. The trial court determined that the warrant, which permitted the search of any cell phone, computer, or other device capable of storing electronic data, was overbroad, and thus invalid. On appeal, the state argues that the warrant was not overbroad because the totality of the circumstances alleged in the supporting affidavit gave rise to probable cause to search any of defendant's electronic devices that were identified in the warrant. Held: The trial court did not err. Although the facts in the affidavit justified a suspicion that defendant possessed child pornography, the affidavit did not provide a factual basis from which a reasonable magistrate could conclude that it was probable that evidence would be found on every electronic device that the warrant authorized to be searched. Because the warrant permitted a search broader than was supported by probable cause, the warrant was over broad in violation of Article I, [299 Or.App. 617] section 9, of the Oregon Constitution, and the trial court properly granted defendant's motion to suppress.

         [299 Or.App. 618] SHORR, J.

         The state appeals a pretrial order granting defendant's motion to suppress evidence. ORS 138.045(lXd). Defendant was charged with 16 counts of first- and second-degree encouraging child sexual abuse. ORS 163.684; ORS 163.686. The charges stemmed from seven images found on defendant's cell phone and one image discovered on defendant's laptop computer in the course of a forensic examination of those devices authorized by a search warrant. Defendant moved to suppress the images discovered on his cell phone, arguing that the warrant was invalid because it was overbroad and not supported by probable cause.[1] The trial court granted defendant's motion.

         In a written opinion, the trial court ruled that the search warrant was overbroad because it permitted a search of "any" cell phone, computer, or other device capable of storing electronic data owned or possessed by defendant, when the facts averred in the supporting affidavit established probable cause to search only one cell phone. The court also ruled that the overbroad portions of the warrant could not be severed. The state appeals, assigning error to the trial court's grant of defendant's motion to suppress, contending that the warrant was not overbroad. Defendant cross-assigns error to the trial court's failure to grant his motion to suppress on the ground that probable cause did not exist for any of defendant's devices, including his cell phone. Because we conclude that the trial court did not err in ruling that the search warrant was overbroad and suppressing the evidence on that basis, we affirm on the state's appeal and do not need to address defendant's cross-assignment of error, which offers a different path to affirming the suppression of the same evidence.

         In reviewing whether a search warrant was supported by probable cause, we consider only those facts put before the magistrate in the supporting affidavit, along with reasonable inferences that can be drawn from them. State v. Williams, 270 Or.App. 721, 722, 349 P.3d 616 (2015); [299 Or.App. 619] State v. Ramirez, 223 Or.App. 241, 244, 195 P.3d 460 (2008). The following facts are taken from the affidavit of Detective Cummings of the Newport Police Department in support of his application for a search warrant to search defendant's car for, and to forensically analyze, among other things, (1) "any" cell phones determined to belong to defendant, (2) "all" computers, including laptops, tablets, iPads, or iPods, and (3) "any and all" hard drives, gaming systems, flash drives, thumb drives, USB drives, S.D. cards, micro S.D. cards, CDs, DVDs, or any other similar devices that store electronic data for evidence related to the crimes of first-degree possession of materials depicting sexually explicit conduct of a child (ORS 163.688) and second-degree encouraging child sexual abuse (ORS 163.686).

         Cummings averred that he had been contacted by another Newport police officer, Davis, after "lewd" images of children were found on a blue Hewlett Packard (HP) laptop that defendant had purchased from a pawn shop, retained for approximately two weeks, and then sold back to the same pawn shop. Employees of the pawn shop contacted police when they found the images on the laptop while cleaning it for resale. The images included several naked photos of defendant, a photo of a four- or five-year-old naked female child in a plastic kiddie pool, a photo of a clothed female child "lying down in a very 'provocative' pose," and multiple images that were password protected. Defendant had purchased the computer from the pawn shop on July 13, 2017, and he had sold it back to the same pawn shop on July 27, 2017. One of the employees confirmed that he was "absolutely positive" that the computer had been "wiped clean" and restored to its original factory settings before being sold to defendant. The employee confirmed that the serial number of the computer sold to defendant on July 13 was the same as the number on the computer sold back by defendant on July 27. Davis seized the HP laptop and secured it in an evidence locker at the Newport Police Department.

         Cummings also averred that, approximately one week before the images were discovered on the laptop, on July 22, 2017, Davis had been dispatched to a Walmart store on a suspicious person complaint. The complaint was that a man was dressed as a Walmart employee and "hanging [299 Or.App. 620] around in the store where children congregate and taking photographs of children." Davis believed that the suspect was "possibly" using a cell phone to take the photos. When Davis arrived at Walmart, he found defendant dressed in clothing that made him look like a Walmart employee, although defendant did not work at Walmart. Davis did not arrest defendant at that time but instructed defendant to contact his parole officer.

         After learning the above information from Davis, Cummings reviewed defendant's criminal history. Defendant had been convicted in 2009 of first-degree sexual abuse and second- and third-degree encouraging child sexual abuse. Cummings discovered that defendant is a registered sex offender who was on parole. Cummings contacted defendant's parole officer, Morgan, who told Cummings that defendant, as a condition of his parole, was not allowed to own or possess any electronic devices that are capable of connecting to the internet. Cummings learned that Morgan had arrested defendant on July 31, 2017, for violating that condition by owning and/or possessing the HP laptop. When Morgan arrested defendant, defendant admitted to Morgan that he had a Samsung smart phone inside his vehicle. Defendant's vehicle was parked in the parking lot of the parole office. Morgan told Cummings that he was familiar with the particular model of Samsung phone that defendant had admitted to owning and that the phone was capable of connecting to the internet.

         In addition to the above, Cummings's affidavit contained a lengthy description of habits and behaviors that, in his training and experience, are commonly associated with individuals who possess child pornography. For instance, Cummings averred that "people who are sexually attracted to children will often obtain sexually explicit images of children from the internet and store these images on their computer or other digital storage device." He also averred that "it is more common than not for persons involved in possession and/or distribution of child pornography to use mobile devices, such as cell phones, laptop computers, or tablet computers to share or receive their pornographic material," and that such persons will "more often than not keep their pornographic material saved on their smart cell phones, [299 Or.App. 621] computers, laptops, tablet computers, thumb drive, S.D. cards, or any other mobile devices they have for easy access to." (Emphasis added.)

         Cummings's affidavit was submitted along with a search warrant application. The application sought authorization to search defendant's car and to seize, among other things:

"4.01 All computers, to include laptops, tablets, IPads, IPods found inside the Vehicle as described above.
"4.02 Any cell phones that, during analysis authorized by a search warrant, are determined to belong to [defendant].
"4.03 Any and all hard drives, gaming systems, flash drives, thumb drives, USB drives, S.D. cards, micro S.D. cards, Compact Disks [sic], DVDs or other similar devices that store electronic data that is found inside the vehicle listed above."

         The warrant further authorized police to forensically examine the above listed items

"for all forms of evidence related to the charges listed at the beginning of this Affidavit, including but not limited to photo images, video images, audio files, text messages, emails, instant messages, chat logs, call logs, web browser history, Social media profiles, File sharing web sites or programs in which child abuse images can be ...

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