Monday, September 19, 2016

The Fourth Amendment, the Search and Seizure of Personal Electronic Devices and “Remote Deletion”

This post examines a case from the Court of Appeals of Oregon: State v. Friddle, 2016 WL 4784106 (2016).  The court begins the opinion by explaining that Ronald Wesley Friddle
appeals an amended judgment of conviction for unlawful possession of more than one ounce of marijuana, Oregon Revised Statutes 475.864(2), assigning error to the denial of a motion to suppress (marijuana) evidence discovered during the execution of a warrant authorizing the seizure and forensic examination of the contents of personal electronic devices. 
State v. Friddle, supra.
As courts usually do, the Court of Appeals began the substantive part of its opinion by explaining how, and why, the prosecution arose:
Around midnight on December 16, 2012, defendant and his then-girlfriend, W, had an altercation at defendant's home in Grants Pass. Oregon State Police Trooper McClendon responded to a call about the altercation and spoke to W, who was no longer at defendant's home, about the incident. W told McClendon that she and defendant had had a heated argument and that, as she tried to leave the home with her belongings, defendant had punched her in the face—`[j]ust clocked me.

W also told McClendon that, at some point during the altercation, before defendant punched her, he `probably hit record.’ In a follow-up interview, W elaborated on that comment. As recounted in McClendon's affidavit in support of the warrant application, W told him that

`[defendant] kept a security system at his residence * * *. [W] said the system allows [defendant] to access his cameras from his cell phone and see a live feed of the house. [W] explained to me one time while [defendant] was working, [W] turned one of the cameras to face the wall. [W] said when [defendant] found out about this he was angry. [W] told me there was a camera facing the area in which the assault took place and believed there was a possibility the assault was captured on the security system.’

McClendon subsequently spoke with defendant, who acknowledged that he had struck W but said that he had done so only in self-defense, as he was trying to block one of W's punches. Defendant told McClendon that he `had recorded the whole conversation’ with W, and, when asked, allowed McClendon to listen to `the audio’ on a cell phone. That recording captured a screaming argument, laced with profanities, as well as sounds of glass breaking, `a struggle,’ and `a loud thud,’ which McClendon believed was a punch.
State v. Friddle, supra.
The opinion goes on to explain that the
trial court issued a warrant authorizing the seizure from defendant's residence of `[a]ny’ `cell phones,’ `[c]omputers,’ `[s]ecurity system,’ `recorders,’ or `[t]ablets (Ipad, Kindle, etc.)’ owned or operated by defendant and the examination of such items `for evidence of the crime of Assault II.’

McClendon and other officers executed the warrant at defendant's residence. Before doing so, however, McClendon had taken defendant into custody at the Oregon State Police patrol office in Grants Pass and, at that time, had seized from defendant's person the same cell phone on which defendant, in December, had played the audio recording of the incident with W.  In the living and office areas of defendant's house, the officers found and seized `a couple cell phones,’ two cameras from the security system, and defendant’s computer and hard drive. Thereafter, in defendant's garage, the officers found a gun safe large enough to hold cell phones, recording devices, cameras, and computer hardware. Inside the safe was the marijuana (93 grams) that was the subject of the criminal drug possession charge on which defendant was convicted—and the object of the motion to suppress.
State v. Friddle, supra.  If you would like to see a completed application for a federal search warrant, you can find one here.
The Court of Appeals then outlined the arguments Friddle made in his motion to suppress evidence and the ones the prosecution made in response:
[i]n moving to suppress, defendant argued, alternatively, that the search of the safe was unlawful because (a) the search warrant was facially overbroad, and (b) in all events, the opening of the safe, after McClendon and the other officers had recovered the other items from defendant's person and home, exceeded the scope of the warrant, because, at that point, there was no reasonable likelihood that items described in the warrant would be found in the safe.

With respect to the first contention—which is the only challenge that defendant raises on appeal—defense counsel asserted that the combination of W's statements to McClendon about the security system, including defendant's ability to access that system via his cell phone, and defendant's playing of the audio recording of the altercation on his cell phone did not substantiate probable cause that any recording, or any other evidence of the alleged assault, would be found on any of defendant's electronic devices other than that particular cell phone and the security system:

`There's nothing in the affidavit * * * there's no[t] even [any] allegation by Trooper McClendon that there's any reason to believe that there's any other recording than what's on the phone.
“ * * * * *’
`[T]here's no factual basis in the [affidavit] to believe that there was anything other than these two things. No I-pads, no other cameras, nothing else. There was an isolated incident that was, that happened over a period of a few minutes. There were these two systems that perhaps had evidence.’
State v. Friddle, supra.
As this site explains, the
text of the Fourth Amendment imposes a requirement that search warrants `particularly describe’ the places to be searched and the property to be seized. This means that a warrant must authorize officers to search only in the specific places described in detail, and to seize only the specific items of enumerated property for which probable cause is set forth in the supporting affidavit. The U.S. Supreme Court describes this rule:
`General warrants, of course, are prohibited by the Fourth Amendment. The problem posed by the general warrant is of a general, exploratory rummaging in a person's belongings. The Fourth Amendment addresses the problem by requiring a 'particular description' of the things to be seized. . . .As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ (Andresen v. Maryland)
The prosecution responded to Friddle’s overbreadth argument by asserting that
the warrant was not overbroad, because it related solely to `electronic evidence that the defendant already made Officer McClendon aware of that existed’—which, in turn, `leads an officer to know that there might be additional evidence related to this crime on X, Y, and Z piece of evidence or on other electronic means.’
State v. Friddle, supra. 
Getting back to the opinion, the Court of Appeals then explained that the trial court judge
denied the motion to suppress. In so ruling, the court began by observing, `Trooper McClendon's affidavit could in part be described as something of a generic assertion of the relevance of cell phones to criminal activity and persons who engage in criminal activity.’ The trial court further noted that, although an officer's `training and experience’—related representations could certainly be material to the assessment of probable cause, the parties had not `cited to any case that specifically reviews the language of the current warrant or anything close to the substance and extent of the affidavit presented in this case.’

The court reasoned that, although McClendon's generalized representations regarding criminal suspects' use of electronic devices might be insufficient to substantiate probable cause, the circumstance that defendant had, in fact, used his cell phone to access and store a recording of the altercation was decisive: `Here, the police had concrete proof that the defendant had a cell phone and that he had used it in the manner that the trooper's training and experience had taught him to be the case.’ Consequently, and concomitantly, the trial court reasoned that the `same or similar may be applied to * * * the kinds of recording devices or storage devices, and the number of computers or storage devices that computers may have or are related to computers,” as well as to “multiple cell phones.’ Accordingly, the court concluded that the warrant was not invalid as overbroad.

Thereafter, defendant entered a conditional guilty plea, and this appeal from the consequent judgment of conviction ensued.
State v. Friddle, supra. 
In his appeal, Friddle made only one argument as to why his conviction should be reversed:
On appeal, defendant assigns error only to the denial of the motion to suppress. His sole appellate contention is that the predicate warrant was invalid as unconstitutionally overbroad, because, defendant asserts,

`it permitted a wholesale search of defendant's home for any cellular phones, computers, security systems, recorders, or tablets when the affidavit in support of the search warrant provided probable cause for the search of only two items: defendant's cellular phone and defendant's home surveillance system.’

(Emphasis in original.) Accordingly, defendant asserts, the search of the gun safe, which yielded the marijuana, was unlawful, as undertaken during the execution of an invalid warrant.

The state remonstrates that the warrant application affidavit established that `defendant was capable of remotely accessing his security video footage from a smart phone or other internet-connected electronic device.’ That, in turn, the state posits, established probable cause to seize and examine the contents of all of the electronic devices described in the warrant `both in order to obtain a copy of the recording and to prevent defendant from destroying it.’

In that regard, the state contends that, because the evidence sought `was the non-tangible, digital video recording of defendant's physical altercation with [W]’ and because the affidavit substantiated defendant's ability to remotely access that data, the seizure of the security system and of the cell phone defendant used to play the audio recording for McClendon did not `necessarily guarante[e] access to the sought-after video recording.’
State v. Friddle, supra. 
The Court of Appeals then explained that in its decision in State v. Mansor, 2016 WL 4014079 (2016), it noted that the “particularity requirement” of the Fourth Amendment
`implicates two analytically distinct, but frequently practically intertwined, concepts. First, the warrant, as supplemented by any attached or incorporated supporting documents, must so clearly describe the place to be searched and the items to be seized and examined that officers can, with reasonable effort, ascertain that place and those items to a reasonable degree of certainty. Second, the warrant must, to the extent reasonably possible, be drawn in such a way as to preclude seizures and searches not supported by probable cause.’
State v. Friddle, supra (quoting State v. Mansor, supra).
The Court of Appeals then began its analysis of the issue in this case, explaining that the
probable cause assessment is, in turn, circumscribed by the contents of the warrant application affidavit(s).See State v. Reid, 319 Or. 65, 71, 872 P.2d 416 (1994) (`[A] warrant may not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.’). . . . Here, because the warrant authorized the seizure and forensic examination of the contents of personal electronic devices, those devices are deemed, for purposes of the particularity requirement, to be `more akin to the “place’ to be searched than to the ‘thing’ to be seized and examined.’ State v. Mansour, supra. Concomitantly, `that requires that the search of that “place” to be limited to the “thing(s)”—the digital data—for which there is probable cause to search.’ State v. Mansour, supra. Thus, our review reduces, ultimately, to whether the warrant application affidavit substantiated probable cause for the forensic examination of the contents of each of those “places”—that is, of `any’ cell phones, computers, and electronic tablets owned or operated by defendant located at his residence (emphasis added).
State v. Friddle, supra. 
The Court of Appeals then explained that in State v. Williams, 270 Or. App. 271, 349 P.3d 616 (2015),
we summarized the controlling standard of probable cause:

`When evaluating the sufficiency of a search warrant affidavit, our task is to determine whether the affidavit alleged sufficient facts to permit a neutral and detached magistrate to determine that seizable evidence probably would be found at the place to be searched. That standard requires an affidavit to do more than allege facts that support a mere suspicion that evidence will be found; even a well-warranted suspicion does not suffice. Rather, the standard of probability requires the conclusion that it is more likely than not that the objects of the search will be found at the specified location.’

State v. Williams, supra (internal citations and quotations omitted) (emphasis added); see also State v. Verdine, 290 Or. 553, 557, 624 P.2d 580 (1981) `“[A] suspicion, no matter how well founded, does not rise to the level of probable cause’).
State v. Friddle, supra. 
The court then explained that
[a]pplying that standard here, we conclude, as amplified below, that the warrant application affidavit did not substantiate probable cause that evidence of the alleged assault—specifically, recordings of the altercation—would be found by way of forensic examination of various devices included in the warrant, including all computers and electronic tablet devices at defendant's residence that he owned or operated. We further conclude that the state's alternative contention—viz., that the seizure of all such devices was necessary to forestall potential `remote’ deletion of recordings of the altercation stored on other electronic devices—is not cognizable on this record as an alternative basis for affirmance. Accordingly, the warrant was invalid, and the search of the gun safe, which yielded the marijuana, was unlawful.
State v. Friddle, supra. 
The Court of Appeals then returned to the content of the affidavit used to obtain the warrant:
We note at the outset—and defendant does not dispute—that the affidavit does establish probable cause with respect to the seizure and forensic examination of defendant's home security system, based on W's statements to McClendon, . . .  and of the cell phone, with the specifically identified phone number, on which defendant played for McClendon the audio recording of the altercation. The critical, disputed nexus, however, is between the content of the affidavit and the other electronic devices included in the warrant. Specifically, does the affidavit substantiate not merely a `well-warranted suspicion,’ State v. Verdine, 624 P.2d 580 (Oregon Supreme Court 1981), but a probability—that is, that it was `more likely than not,’ State v. Williams, 349 P.3d 616 (Oregon Court of Appeals 2015)  (emphasis added)—that an examination of the contents of those devices would disclose evidence of the alleged assault?

The warrant application affidavit discloses only two possible bases for such a circumstantial inference. The first is McClendon's general `training and experience’—based representation that `subjects involved in criminal activity regularly use cellular telephones and cellular telephone features, i.e., text-messaging, photos, recordings (audio and video) etc., to record and store photos, audio recordings and video recordings of their crimes.’ See 281 Or. App. at 133, ––– P.3d at ––––. The second is the uncontroverted circumstance that defendant did, in fact, access and store an audio recording of the altercation on a cell phone identifiable by a specific phone number. That representation and that circumstance are insufficient, individually and collectively, to establish probable cause to seize and examine the contents of the other personal electronic devices.
State v. Friddle, supra. 
The court took up the issue of McClendon’s “training and experience”,
seconding the trial court's characterization of McClendon's `training and experience’—based representations as `generic.; In that regard, we note that the affidavit's only description of McClendon's professional training and experience was that he had served as a state police trooper for three years and had participated in `no less than 50 investigations’ involving `person-to-person’ crimes. Nothing in the affidavit describes any training relating to personal electronic devices and their contents as evidence in criminal investigations or any specific personal professional experience pertaining to such matters. In this context, and given the proliferation of applications for warrants authorizing the forensic examination of the contents of electronic devices, an admonition bears reiteration:

`In the context of statements regarding training and experience, * * * we must not only ensure that the officer's knowledge is connected to the facts of a particular case; we must also examine the knowledge itself. The phrase ‘training and experience,’ in other words, is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.’

State v. Daniels, 234 Or.App. 533, 541, 228 P.3d 695, rev. den., 349 Or. 171, 243 P.3d 70 (2010); accord State v. Holdorf, 355 Or. 812, 829, 333 P.3d 982 (2014) (`We emphasize that a police officer's training and experience, as relevant to proving particular circumstances, is not presumed based solely upon a police officer's employment status’).
State v. Friddle, supra. 
Finally, the Court of Appeals took up the prosecution’s
alternative rationale—viz., that seizure of defendant's other personal electronic devices was justified as essential to preclude potential `remote’ deletion of any evidence stored in the surveillance system or the cell phone on which defendant had played the audio recording for McClendon. That contention is raised for the first time on appeal: The state did not advance such a contention in opposing suppression before the trial court—which is unsurprising, given that the only references in the warrant application affidavit to such potential “tampering” or deletion were in the context of seeking authorization to seize and search data stored on remote servers to forestall destruction of that evidence. . . .

We decline to consider the state's belated contention. That contention is legally and factually problematic in that it implicates matters not addressed (again, unsurprisingly) in the warrant application affidavit. For example, can suspects engage in `remote’ destruction of evidence on one or more of their personal electronic devices (or stored on servers) by using a device other than their own? Or, even assuming the state's premise that seizure of all of a suspect's electronic devices is necessary to forestall such “remote” destruction of evidence on other devices (or servers), how does that justify forensic examination of the contents of all of the devices? Even putting aside those aspects, however, the state's novel proposition has potentially profound systemic implications that have been completely unexplored on this record.

Accordingly, we decline to review that contention. See State v. Kolb, 251 Or.App. 303, 311–12, 283 P.3d 423 (2012) (emphasizing that appellate court's consideration of an alternative basis for affirmance `is a matter of prudential discretion and not compulsion” and declining to address the state's “belated and still-cursory’ alternative basis for affirmance of denial of suppression because, regardless of whether the trial court record might have been affected if that contention had been raised in opposing suppression, `the fact remains that to address that contention meaningfully would require us, in the first instance—without legal record development or any real assistance from the parties—to decide difficult, nuanced, and systemically significant issues’).
State v. Friddle, supra. 
The Court of Appeals therefore held that the
search warrant was invalid, rendering the search of the gun safe unlawful. Accordingly, the trial court erred in denying the motion to suppress.

State v. Friddle, supra. 

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