State v. Bellar

217 P.3d 1094, 231 Or. App. 80, 2009 Ore. App. LEXIS 1509

• Court: Court of Appeals of Oregon
• Decided: September 30, 2009
• Docket: 050230673; A129493
• Status: Published

Opinions

EDMONDS, P. J.

The appeal in this criminal case charging defendant with 40 counts of encouraging child sexual abuse in the second degree, ORS 163.686, was initiated by the state after the trial court allowed in part and denied in part defendant’s motion to suppress evidence. Defendant cross-appeals pursuant to ORS 138.040¹ from the part of the order denying the motion to suppress. Subsequently, the state dismissed its appeal. The threshold issue before us is whether, under ORS 138.040, we may exercise our discretion to consider defendant’s cross-appeal after the state has dismissed its appeal. We conclude that, under the holding in State v. Shaw, 338 Or 586, 113 P3d 898 (2005), we are required to dismiss defendant’s cross-appeal.

The trial court’s order recites that the charges against defendant arose out of the discovery of images of child pornography on defendant’s computer by a computer repair technician. The evidence sought to be suppressed by defendant consisted of his statements and computer images depicting child pornography. In September 2003, defendant took his computer to a repair shop owned by Wells. Defendant asked Wells to repair his computer and to copy files from the hard drive so they could be loaded on defendant’s new computer. Part of that process involved Wells copying files from defendant’s computer onto his own computer in order to preserve those files in the event that there was a problem in restoring the files to defendant’s computer. While copying the files to his computer, Wells came across a file with a name that Wells associated with gaming activities. Wells was uncertain whether defendant wanted the file copied to his new computer. Consequently, he opened the file and discovered multiple images of what appeared to be children engaged in sexual acts.

After defendant picked up his computer from Wells, Wells reported his discovery to his mother, who works for the Multnomah County Sheriffs Office. A few days later, Wells was contacted by a Multnomah County sheriff deputy who informed him that the report would be referred to the City of Portland Police Bureau. Wells heard nothing further until approximately two months later when he was contacted by Multnomah County Sheriff Deputy Biles. In the interim, Wells had decided to copy defendant’s files that existed on his own computer. He transferred those files to a CD and then deleted them from his own computer.

When Biles contacted Wells, Wells offered to give the CD containing defendant’s computer files to Biles. Biles took the CD and went back to his office, put the CD in his computer, viewed the images, and confirmed that the images depicted child pornography. The investigation was then determined to be within the jurisdiction of the Portland Police Bureau and transferred to that agency.

Andrews, a detective with the Portland Police Bureau, viewed the CD with defendant’s files on it that had been made by Wells. The “gaming” file opened by Wells was determined to contain 287 pornographic images. Andrews also viewed another file entitled “Thumbs 31” belonging to defendant that was on the Wells CD and found more images of child pornography. Andrews then procured a search warrant for the search of defendant’s residence. When the officers executing the search warrant contacted defendant, they had him read a written Miranda warning and defendant signed a consent form agreeing to speak with the officers. During the ensuing interview, defendant admitted that he knew that the images of child pornography existed on his computer but explained that the images had been put there by the person from whom he had bought the computer. While the interview was ongoing, the police seized a number of personal items including computers and computer files from defendant’s residence and subsequently opened or viewed those computer files.

After defendant was charged, he initially moved to suppress the evidence that the police obtained from his computer files at his residence, arguing that the search warrant obtained by the police did not authorize a search of his computers and related electronic storage media. In a supplemental motion to suppress, he argued that the police impermissibly expanded Wells’s private search of defendant’s files by examining a copy of the files provided by Wells without a warrant. In a second supplemental motion, he contended that the initial copying of his computer files by Wells was done at the direction of law enforcement officials. Additionally, defendant filed a motion to controvert contents of the affidavit that the police had filed in support of their request for a search warrant, and he moved to suppress his statements that were made contemporaneously with the search of his residence.

The trial court, in a memorandum opinion and a supplemental memorandum opinion, agreed with defendant’s initial motion to suppress. It reasoned that the language in the warrant did not authorize the police to look at the images on the computers and disks seized from defendant’s residence. According to the trial court, the warrant was supported by probable cause and authorized the search of defendant’s residence for a list of items in the warrant and a seizure of those items but not a subsequent search or viewing of the contents of the seized items. It rejected defendant’s argument that Wells was acting as an agent of the police. The court also granted defendant’s supplemental motion to suppress evidence obtained as a result of the police viewing the file contained on the CD provided to them by Wells but only to the extent that their search exceeded the scope of the private search by Wells. The trial court also denied defendant’s motions to controvert the evidence and to suppress the statements that he made to the detectives at the time the search warrant was executed.

Pursuant to its rulings, the court entered an order suppressing the evidence that police obtained through the search of items seized from defendant’s residence and granting and denying in part the supplemental motion to suppress evidence that the “police obtained in connection with their review of the CD provided to them by computer repairman Ron Wells.” The order also denied defendant’s second supplemental motion to suppress, defendant’s motion to controvert, and defendant’s motion to suppress the statements that he had made to police. The state appealed. In its notice of appeal, the state stated, “State of Oregon, Plaintiff, hereby gives notice of appeal from the ORDER GRANTING DEFENDANT’S MOTIONS TO SUPPRESS[.]” Four days later, defendant filed a notice of cross-appeal appealing “to the extent [the order] denied portions of defendant’s motion to suppress.” Defendant also cross-appealed from other pretrial orders entered by the trial court. Approximately one year later, the state moved to dismiss its appeal, citing the following reasons:

“After careful evaluation of this appeal, and after consultation with the Multnomah County District Attorney’s Office, the state has concluded that it would be more expeditious to reseize the challenged evidence by means of a search warrant, rather than to pursue this appeal of the trial court’s order suppressing evidence obtained from defendant’s computer.”

Defendant thereafter continued to pursue his cross-appeal, making five assignments of error, three of which pertain to the trial court’s rulings on the motions to suppress: (1) The trial court erred by denying defendant’s motion to suppress the results of Bile’s view of the CD provided by Wells; (2) The search warrant was the product of the prior unlawful search of the CD; and (3) The statements obtained from defendant were the product of an illegal search.

In Shaw, the court identified, for the first time, the circumstances under which appellate courts should elect to exercise their statutory discretion to review a defendant’s cross-appeal under ORS 138.040. 338 Or at 617. In other words, the court’s holding in Shaw effectively defines the boundaries of our discretion to consider defendant’s cross-appeal. The initial holding in Shaw is that the exercise of discretion under ORS 138.040 to review a defendant’s cross-appeal should be exercised “only sparingly.” Id. at 618.

The reasons for that limitation are two-fold, according to the Shaw court. First, a defendant, unlike the state, has a full opportunity to challenge any intermediate adverse trial court ruling if the defendant is convicted. If a defendant is acquitted, then any intermediate rulings become moot. Accordingly, a limitation on the exercise of discretion under ORS 138.040 of a defendant’s cross-appeal promotes judicial economy at the appellate level, thereby negating the possibility of the expenditure of judicial time and resources on issues that will not arise unless the defendant is convicted. Id. at 618.

Second, a state’s pretrial appeal necessarily prolongs the pendency of a criminal proceeding against a defendant and may in some cases result in the defendant remaining in custody during the pendency of the appeal. The consideration of a cross-appeal by this court, along with the state’s appeal, together with the possibility of review by the Supreme Court, only adds to the delay of the defendant being brought to trial. In the Shaw court’s view, those considerations “strongly support ] the view that this court should limit the exercise of its discretion under ORS 138.040 to review a defendant’s challenges to a trial court’s intermediate rulings raised by cross-appeal.” Id. at 618.

In addition to expressing the policies underlying the limitation on the discretion of an appellate court under ORS 138.040, the Shaw court undertook to define the circumstances regarding when that discretion should be exercised:

“In light of the considerations articulated above, we conclude that, in respect [to] a defendant’s cross-appeal, this court’s ordinary practice will be to limit its consideration only to those assignments of error that are inextricably linked, either factually or legally, to the state’s assignments of error on appeal. Only under those factual circumstances can we reasonably be assured that our review of a defendant’s assignments of error on cross-appeal will not contribute unnecessarily to the delay from a state pretrial appeal under ORS 136.060(2)(a).”

338 Or at 618-19.

The question then becomes, under Shaw, whether defendant’s assignments of error are inextricably linked, either factually or legally, to the state’s assignments of error to the trial court’s ruling that the search warrant authorized a seizure of defendant’s personal effects but not a search of their contents.² We conclude that the requirements of the Shaw test are not satisfied by the record underlying defendant’s cross-appeal. The state appealed principally from a ruling regarding the scope of the search warrant and whether its language authorized the police to open the computer files that had been seized from defendant’s residence. The body of law that governs that issue is unrelated to the jurisprudence that governs defendant’s assignments of error. In reaching its conclusion regarding the scope of the warrant’s authorization, the trial court relied on State v. Carter, 200 Or App 262, 113 P3d 969 (2005), aff'd, 342 Or 39, 147 P3d 1151 (2006), where a search warrant directed police to search for a detailed list of items including controlled substances, drug paraphernalia, other materials related to the manufacture and distribution of controlled substances, and firearms. However, the warrant did not authorize the seizure of any of the listed items. Among the items seized pursuant to the warrant were a microcassette audiotape and a computer. On appeal, we concluded that a warrant may validly authorize police to search for items without authorizing the seizure of any of the items. Id. at 265. We also remanded for the trial court to determine whether the items seized constituted incriminating evidence based on the plain view doctrine. Id. at 268. Based on our holdings in Carter, the trial court in this case reasoned that, “the detectives should have looked no further until after they had obtained a warrant to seize and then search the remainder of the files and images on the CD provided to them by Wells.”

The trial court’s holding pertaining to the scope of authority conferred by the provisions of the search warrant to search defendant’s residence and seize items from there is easily disentangled from the issue of whether Bile’s viewing of the CD made by Wells from Wells’s computer was an unreasonable search within the meaning of Article I, section 9.³ Indeed, the trial court’s analysis did precisely that when it ruled in favor of defendant on part of his motion to suppress and in favor of the state on the remainder of the motion. Factually, the issues are framed by different circumstances, those occurring at Wells’s repair shop and those occurring at defendant’s residence. Also, the legal issues framed by the two discrete events referred to above are not inextricably linked. The issue with regard to the scope of warrant authority is a different legal issue from whether a “search” occurred when Biles viewed Wells’s CD. A brief discussion of when a “search” occurs under Article I, section 9, illustrates the point.

Generally, a search occurs when the government invades a protected privacy or possessory interest of the defendant. Privacy interests are commonly circumscribed by the space in which they exist, i.e., the private space of a person. State v. Smith, 327 Or 366, 372-73, 963 P2d 642 (1998). Nonetheless, in the abstract, the absence of a physical or sensory invasion of a private space does not necessarily defeat a claim that government conduct constitutes a search for purposes of Article I, section 9. State v. Meredith, 337 Or 299, 304, 96 P3d 342 (2004). For example, in State v. Campbell, 306 Or 157, 759 P2d 1040 (1988), the police, acting without a search warrant, attached a radio transmitter to the defendant’s vehicle that enabled them to track its location. The Supreme Court held that the attachment and the monitoring of the signal from the transmitter constituted a search under Article I, section 9. Id. at 172.⁴

It follows from the above discussion that defendant’s assignments of error are not inextricably linked, factually or legally, to the state’s appeal because the factual circumstances and the legal issues that defendant frames are dissimilar to the factual circumstances and the legal issue upon which the state’s appeal was predicated. As a result, under the holding in Shaw, we must decline to exercise our discretion under ORS 138.040 to review any of defendant’s assignments of error on cross-appeal at this time.⁵

The dissent disagrees. The dissent criticizes the majority for not deferring to the Chief Judge’s exercise of discretion when he preliminarily denied the state’s motion to dismiss defendant’s cross-appeal on the basis of the holding in Shaw. 231 Or App at 92 (Sercombe, J., dissenting). With respect, our decision is based not on any exercise of unfettered discretion on our part but on our understanding of the holding in Shaw. See State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (“If there is only one legally correct outcome, then ‘discretion’ is an inapplicable concept.”). The Shaw court’s interpretation of ORS 138.040 is clear: the statutory discretion to entertain a cross-appeal has been significantly restricted by the court’s interpretation of the statute, and its interpretation has the same force of law as if those limitations were written into the statute itself. See Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992) (“When this court interprets a statute, that interpretation becomes a part of the statute as if written into it at the time of its enactment.”).

Also, part of the dissent’s disagreement is based on the fact that the state’s notice of appeal incorporated by reference the portion of the court’s order granting defendant’s motion to suppress evidence derived from the police viewing the “Thumbs 31” file, a file that Wells had copied but not viewed. Apparently, that inclusion in the notice of the appeal, in the dissent’s view, ought to change the result under Shaw. We are not persuaded by the dissent’s argument. The state’s motion to dismiss its appeal implies that it no longer relies on any evidence from the “Thumbs 31 file,” and indeed, the trial court’s order concerning that file has the legal effect of being a final order because of the state’s dismissal of its appeal. It is not apparent to us why that result should require consideration of defendant’s cross-appeal regarding Wells’s copying of defendant’s computer records, the subsequent issuance of a search warrant for the search of defendant’s residence based on the information given by Wells to the police, and the suppression of defendant’s statements made to the police in light of the policy issues discussed above by the Shaw court.

The dissent also contends that given the delay in the prosecution of the cross-appeal, “postponing final resolution of the important search and seizure issues in this case is unfair to defendant and squanders the significant resources of this court already expended on this case.” 231 Or App at 92 (Sercombe, J., dissenting). But, as the Shaw court pointed out in its opinion, no unfairness to defendant is caused by the dismissal of his cross-appeal when he will have a complete opportunity to appeal the trial court’s suppression order if convicted. For that matter, we do not know what evidence will be offered by the state at trial in light of its intent to seek the issuance of another search warrant to search the items seized from defendant’s residence. Also, as to the resources utilized by this court to date in considering defendant’s cross-appeal, it is unlikely, for the same reason that this case would be finally resolved by any decision made by us even if we were to exercise jurisdiction.

We conclude, based on the pronouncement in Shaw, that to refuse to dismiss defendant’s cross-appeal would fall outside the boundaries of the discretion conferred by ORS 138.040 on this court.

Cross-appeal dismissed; case remanded for further proceedings.

1 ORS 138.040 provides, in part:

“Except as provided under ORS 138.050, the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(l)(c) or (2)(a). The following apply upon such appeal or cross-appeal:

“(1) The appellate court may review:

“(a) Any decision of the court in an intermediate order or proceeding.”

2 We note that given the holding in Shaw, our decision in State v. Atkinson, 64 Or App 517, 669 P2d 343 (1983), aff'd, 398 Or 1, 688 P2d 832 (1984), does not require a different result. See 231 Or App at 98 (Sercombe, J., dissenting).

3 Defendant’s other assignments of error are derivative of his first assignment.

4 Defendant does not appear to contend that his privacy was invaded by a form of electronic surveillance such as occurred in Campbell and Meredith.

5 Properly framed, the issue raised by defendant’s cross-appeal is whether a “search” occurs when a third person acquires private information and then delivers that information to the police. See, e.g., Walker v. Penner, 190 Or 542, 227 P2d 316 (1951) (holding that there was no violation of Article I, section 9, when a private citizen removed incriminating evidence from a wrecked car and delivered it to the police); see also Burdeau v. McDowell, 256 US 465, 475, 41 S Ct 574, 65 L Ed 1048 (1921) (holding that no government search occurred within the meaning of the Fourth Amendment to the United States Constitution when a thief stole private papers belonging to the defendant and delivered them to law enforcement officers). Arguably, defendant maintained a privacy interest in the information in his computer files even though he authorized them to be copied to Wells’s computer. See, e.g., State v. Johnson, 340 Or 319, 336, 131 P3d 173 (2006) (holding that the defendant had a cognizable privacy interest in the content of his telephone calls). Because we decline to exercise our discretion under ORS 138.040 to review defendant’s cross-appeal for the reasons expressed above, we do not decide whether a “search” of a defendant’s private information or “papers” by the government occurs within the meaning of Article I, section 9, when a third party in possession of such a container authorizes the police to view the contents of the container. But see State v. Tanner, 304 Or 312, 323, 745 P2d 757 (1987) (“In general * * * the entrustment of an effect to another is sufficient to establish a privacy interest that is violated when the effect is discovered through an unlawful search.”).