State v. Burnham

412 P.3d 1233, 289 Or. App. 783
Court of Appeals of Oregon·Decided January 10, 2018·No. A155709·Published·Cited by 11 cases

Opinion

GARRETT, J.

*785The state petitions for reconsideration, requesting that we clarify the scope of our holding in State v. Burnham , 287 Or.App. 661, 403 P.3d 466 (2017). We agree with the state that it is necessary to clarify the disposition, and we allow reconsideration.1

In Burnham , we held that the trial court erroneously denied defendant's motion to suppress evidence, and we reversed the judgment of conviction. We concluded that the search warrant was impermissibly overbroad because it authorized the search of " '[a]ny and all' of defendant's 'computer equipment' and 'electronic data devices' " without probable cause to believe that all such devices contained evidence of the crimes under investigation-trespassing and unlawful hunting. Id. at 665-66, 403 P.3d 466. We did not address whether the trial court should have suppressed the remainder of evidence seized pursuant to and during the execution of the search warrant.

On reconsideration, the state argues that the only evidence subject to suppression is the evidence recovered pursuant to that portion of the warrant that we held to be overbroad-that is, the GPS location data obtained from digital photographs discovered in defendant's laptop computer. The state argues that our disposition should not affect the admissibility of any other evidence seized at defendant's home, which includes two road signs that the state introduced as evidence of theft. We agree with the state that the impermissibly overbroad portion of the warrant "may be excised and the balance of the warrant upheld" and that only those items "seized under the invalid portion of the warrant must be suppressed." See *1235State v. Vermaas , 116 Or.App. 413, 416, 841 P.2d 664 (1992), rev. den. , 316 Or. 142, 852 P.2d 838 (1993). Accordingly, we modify our opinion to conclude that the trial court only erred insofar as it did not suppress evidence seized under the overbroad portion of the warrant, and it did not err by admitting evidence covered by the valid portions of the warrant. *786Pursuant to the invalid portion of the warrant, the state discovered GPS evidence on a laptop that it relied upon to prove that defendant had trespassed, hunted without permission, and killed an elk while hunting without permission. Therefore, we adhere to our conclusion that that evidence should have been suppressed and that the error was not harmless with respect to Counts 2 and 3, hunting upon the cultivated or enclosed land of another without permission, ORS 498.120 ; Counts 5 and 6, second-degree criminal trespass, ORS 164.245 ; and Count 7, violating a provision of the wildlife laws or rules with a culpable mental state, ORS 496.992(1).

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State v. Burnham, 412 P.3d 1233, 289 Or. App. 783 (Or. Ct. App. 2018).

412 P.3d 1233 (State v. Burnham) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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