Supreme Court of Oregon: Computer Search Warrants Are Not Digital General Warrrants

On June 28, 2018, the Supreme Court of Oregon issued a decision in State v. Mansor, No. SC S064382, 2018 Ore. LEXIS 522, 363 Ore.185 (Or. June 28, 2018) on the Defendant's challenge under the Oregon Constitution to a warrant issued for a search of his computer. The warrant was issued for an investigation into the circumstances around the death of the defendant's infant son. The defendant's contention that he searched online for information on first aid care before phoning 911 prompted the police to request the warrant. The search showed that the father looked for information on the internet regarding child abuse shortly before his son's death.

The Oregon Court of Appeals ruled that the search violated the particularity requirement of the Oregon Constitution because it permitted the police to search anything on the Defendant's computer. On this basis Mansor's conviction for murder was reversed, and the case was remanded. The Supreme Court in part affirmed the decision of the Court of Appeals. "We acknowledge that, for practical reasons, searches of computers are often comprehensive and therefore are likely to uncover information that goes beyond the probable cause basis for the warrant. In light of that fact, to protect the right to privacy and to avoid permitting the digital equivalent of general warrants, we also hold that Article I, section 9, prevents the state from using evidence found in a computer search unless a valid warrant authorized the search for that particular evidence, or it is admissible under an exception to the warrant requirement." Id. at *4-5.

A forensic search was necessary to find the details of the Defendant's internet search history. Justice Balmer's opinion includes a section entitled, "The Digital Context", which gives a lengthy description of how data is stored on a computer, discussing the recovery of deleted files and how to hide files. He notes that criminal investigations search computers in two phases: a data acquisition phase (the search for the computer itself) and a data reduction phase (the review by the forensic examiner).

Justice Balmer noted that it was advisable to list a specific time range in the affidavit for the warrant, but that this is not a necessary element of the particularity requirement. "To meet the particularity requirement of Article I, section 9, the warrant must identify, as specifically as reasonably possible in the circumstances, the information to be searched for,including, if relevant and available, the time period during which that information was created, accessed, or otherwise used. We emphasize, however, based on our discussion of digital devices and computer searches above that the forensic examination likely will need to examine, at least briefly,some information or data beyond that identified in the warrant ." Id. at 55. Because the warrant specifically stated that a search was to be conducted for internet search history on a particular date, the Supreme Court disagreed with the Court of Appeals that the warrant was facially invalid and overbroad.

The Supreme Court did however find that trial court was wrong to deny the motion to suppress the results of the forensic examination in its entirety. A reasonable search way require a review of information beyond the scope of the warrant. This poses the risk of warrants to search digital evidence becoming general warrants. A targeted search will not invade a person's privacy interest. However evidence from a search for information not identified in the warrant, or the use of information not identified in the warrant, uncovered in the targeted search, cannot be used.