State v. Burnham

403 P.3d 466, 287 Or. App. 661, 2017 Ore. App. LEXIS 1039
CourtCourt of Appeals of Oregon
DecidedSeptember 7, 2017
Docket130104; A155709
StatusPublished
Cited by10 cases

This text of 403 P.3d 466 (State v. Burnham) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burnham, 403 P.3d 466, 287 Or. App. 661, 2017 Ore. App. LEXIS 1039 (Or. Ct. App. 2017).

Opinion

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 P3d 979 (2016), and State v. Mansor, 279 Or App 778, 381 P3d 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 P3d 1283, adh’d to on recons, 345 Or 473, 198 P3d 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 [663]*663where 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 information “can be stored on, but not limited to, internal memories, and Internet databases.”

In executing the search warrant, officers seized a number of incriminating items. Officers also seized a laptop owned by defendant, performed forensic analysis on its [664]*664digital contents, and obtained incriminating GPS data from photos discovered on the laptop.

Defendant moved to suppress all evidence derived from the execution of the search warrant, arguing, among other things, that the warrant was overbroad and that the affidavit was insufficient to establish probable cause for the seizure and analysis of defendant’s laptop. The trial court denied defendant’s motion. On appeal, defendant argues that the trial court erred in denying his motion to suppress, reprising his argument that the warrant was impermissibly overbroad.

Article I, section 9, provides, in relevant part: “[N]o 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.” When a warrant authorizes the seizure and examination of the contents of multiple personal electronic devices—which are, for purposes of the particularity requirement of Article I, section 9, more akin to “‘placets]’ to be searched” than “‘thing[s]’ to be seized and examined”—the affidavit must substantiate ■probable cause for the forensic examination of the contents of each of the electronic devices included in the warrant. Friddle, 281 Or App at 138 (quoting Mansor, 279 Or App at 801). If it does not, such a warrant authorizes invasions of privacy that are not supported by probable cause and, as such, is overbroad in violation of Article I, section 9. Id. at 137-38.

Our recent decision in Friddle is closely analogous to this case. In Friddle, the defendant was suspected of assaulting his then-girlfriend. Id. at 131. Police knew that the defendant had a security system that may have recorded the assault, and a police officer had personally observed the defendant accessing an audio recording of the assault on his cellular phone. Id. at 132. Based on that information, the police applied for a warrant to seize and analyze the contents of a broad array of the defendant’s personal electronic devices. Id. at 133-34. The affiant alleged that, based on his “training and experience,” individuals involved in “criminal activity regularly use” cellular phones to “record and store photos, audio recordings, and video recordings of their [665]*665crimes.” Id. at 133. The affiant stated that it was his belief that a search of the defendant’s cell phones and computer “will show recordings” of the alleged assault. Id.

On appeal, we concluded that, for two reasons, the affidavit was insufficient to support probable cause to forensically examine all of the electronic devices included in the warrant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Lane
347 Or. App. 229 (Court of Appeals of Oregon, 2026)
State v. DiMolfetto
342 Or. App. 456 (Court of Appeals of Oregon, 2025)
State v. Meyers
565 P.3d 463 (Court of Appeals of Oregon, 2025)
State v. James
336 Or. App. 55 (Court of Appeals of Oregon, 2024)
State v. Cantrell
536 P.3d 606 (Court of Appeals of Oregon, 2023)
State v. Cannon
450 P.3d 567 (Court of Appeals of Oregon, 2019)
State v. Frischman
445 P.3d 946 (Court of Appeals of Oregon, 2019)
State v. Burnham
412 P.3d 1233 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
403 P.3d 466, 287 Or. App. 661, 2017 Ore. App. LEXIS 1039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burnham-orctapp-2017.