State v. Allen

The particularity requirement of ORS 133.565 (2)(c) and the Article I, Section 9 of the Oregon Constitution requires a warrant to have (1) a clearly described place to search as to allow officers to seize items with “a reasonable degree of certainty” and (2) the search warrant must “be drawn in such a way as to preclude seizures and searches not supported by probable cause.” State v. Mansor, 279 Or App 778, 792-93, 381 P3d 930 (2016), rev allowed, 360 Or 752 (2017).

Defendant appealed the conviction of one count murder against himself and two co-defendants. See State v. Riley, 288 Or App 264, ___ P3d ___ (2017); State v. Lomax, 288 Or App 253, ___ P3d ___ (2017). Defendant assigned error to the trial court’s denial of a motion to suppress evidence found in a search of his cell phone. On appeal, Defendant argued that the search warrant affidavit (1) was too broad and thus did not satisfy the particularity requirements and (2) lacked evidence to establish a sufficient nexus between his phone and the crime. In response, the State argued that (1) the warrant was sufficiently particular because it limited the scope of the search to only look for evidence of the murder and (2) the affidavit properly established probable cause that the cell phone would reveal evidence of the murder. The particularity requirement of ORS 133.565 (2)(c) and the Article I, Section 9 of the Oregon Constitution requires a warrant to have (1) a clearly described place to search as to allow officers to seize items with “a reasonable degree of certainty” and (2) the search warrant must “be drawn in such a way as to preclude seizures and searches not supported by probable cause.” State v. Mansor, 279 Or App 778, 792-93, 381 P3d 930 (2016), rev allowed, 360 Or 752 (2017). The Court of Appeals held that the warrant was far too broad to meet the statutory and constitutional standards because there were no limitations upon what could be searched. The Court further held that due to the nature of a cell phone obtaining vast amounts of different types of data, the warrant should have included what types of data the officers would be examining (i.e. photos, text, emails, etc.) Conviction for murder reversed and remanded; otherwise affirmed.