738 July 29, 2026 No. 708
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEVEN MICHAEL KLAUS,
Defendant-Appellant.
Washington County Circuit Court
20CR35140, 23CR05129, 23CR03966;
A183454 (Control), A183455, A183456
Erik M. Buchér, Judge.
Argued and submitted February 5, 2026.
Lindsey Burrows argued the cause and filed the reply
brief for appellant. On the opening brief were Ryan T.
O’Connor and O’Connor Weber LLC.
Philip Thoennes, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
KAMINS, J.
Reversed and remanded.
Cite as 351 Or App 738 (2026) 739
740 State v. Klaus
KAMINS, J.
In this consolidated criminal appeal, defendant
appeals from judgments of convictions in three related
cases. Following a stipulated facts bench trial, defendant
was convicted of two counts of first-degree unlawful sexual
penetration, ORS 163.411, five counts of first-degree sexual
abuse, ORS 163.427, four counts of second-degree invasion
of personal privacy, ORS 163.700, and two counts of using a
child in a display of sexually explicit conduct, ORS 163.670.
Defendant challenges the denial of his motion to suppress
evidence found on a laptop that he purchased with his
ex-wife and that was left at the family home after defendant moved out and the couple divorced. Defendant’s ex-wife
provided the laptop to law enforcement and consented to a
search of its contents. Defendant, through counsel, objected
to a search. After approximately six months, law enforcement obtained a search warrant and searched the laptop.
Defendant argues that he had a privacy interest in the
contents of the laptop, his ex-wife could not consent to the
search, he did not abandon his privacy interest in the laptop, and the warrant was insufficiently particular and overbroad. We conclude that defendant had a privacy interest
in at least some of the contents of the laptop, defendant did
not abandon that interest, his ex-wife could not consent to a
search of those contents, and the warrant was insufficiently
particular as to those contents. Accordingly, we reverse and
remand.
I. FACTS
“We review a trial court’s ruling on a motion to suppress for errors of law, and we are bound by the trial court’s findings of fact, provided they are supported by constitutionally sufficient evidence.” State v. Zweygartt, 337 Or App
234, 236, 562 P3d 1106, rev den, 373 Or 738 (2025). “We
state the facts consistent with the trial court’s findings and its denial of defendant’s motion to suppress.” State v. Bunch, 305 Or App 61, 62, 468 P3d 973 (2020). “To the extent that
the court did not make express findings, we presume that
the court decided the facts in the light most favorable to the state.” Id.
Cite as 351 Or App 738 (2026) 741
A. Defendant and Carder’s Relationship
In early 2010, defendant and Carder started dating and purchased a home together. They married in 2011.
Defendant had three daughters from a prior relationship and
Carder had two children from a prior relationship, including a daughter, Z. Around that time, defendant and Carder
purchased a laptop computer. It was a household computer
that stayed in public areas of the house and was used for
“household stuff” like family photos and tax returns, but it
was mostly used by defendant. Defendant would sometimes
take it with him to his work overnight to kill time. It was
password protected, but Carder knew the password.
In May 2019, the relationship between Carder and
defendant “deteriorated” and Carder requested that defendant move out of the family home, or she would file a restraining order. Defendant moved out and Carder packed up “much
of [defendant’s] stuff” and dropped it off where he was staying. Defendant’s daughters also brought over some of defendant’s belongings to him “as needed.” Defendant never asked
for the laptop, and Carder retained possession of it.
Carder and defendant divorced in December 2019.
In the judgment of dissolution, which incorporated an arbitration agreement between the parties, Carder and defendant agreed that they would have no trouble dividing up
personal property, but if they had any issues, they could
seek the arbitrator’s help, even after entry of the dissolution judgment. In March 2020, defendant drove to Carder’s
home with movers to pick up some tools and other items that
Carder had left in a storage trailer. When Carder believed
the movers were taking more items than agreed upon, she
called the police. Carder and defendant agreed that any
further contact regarding exchange of items should happen
through attorneys. Defendant never reached out through an
attorney for any additional items, including the laptop, prior to finding out that the laptop was turned in to the police,
and never sought an arbitrator’s help (per the dissolution
judgment) to claim the laptop.
In May 2020, a pipe burst in the home and Carder
“packed a bunch of stuff” and dropped it off for defendant
742 State v. Klaus
and his daughters. Carder believed the laptop went into storage at that time, while the house was undergoing remediation. Carder fully moved out of the home a few months later
and relocated to Redmond, bringing the laptop with her.
B. Z Discloses Sexual Abuse and Police Search the Laptop
When Carder told her daughter, Z, that she and
defendant were getting a divorce, Z disclosed that defendant
was sexually abusing her. After an investigation, a grand
jury indicted defendant on two counts of unlawful sexual
penetration in the first degree, ORS 163.411, and five counts
of first-degree sexual abuse, ORS 163.427, for acts that
occurred between June 2010 and November 2016. As part
of his defense strategy, defendant requested custody records
of Z from Carder through a subpoena. Carder thought the
records might be on the shared laptop. When searching the
laptop, Carder discovered a document titled “A Serious Man”
that had several hyperlinks with titles that indicated child
sexual abuse materials (CSAM). The document appeared
to be created by defendant. Carder emailed the district
attorney, informing her about the document, and the district attorney disclosed Carder’s email and the document to
defendant. Defendant then emailed the district attorney’s
office to note his objection to any search of the laptop and
requesting its return. The following month, Carder turned
the laptop over to Detective Pomeroy at the Forest Grove
Police Department and consented to a search of the device.
Approximately six months after receiving the laptop, Pomeroy prepared an affidavit and accompanying
search warrant to search the device for evidence related
to the crimes of encouraging child sex abuse in the second
degree, ORS 163.686,1 in addition to the crimes for which
defendant was indicted: sexual abuse in the first degree,
1
ORS 163.686 provides, in full:
“(1) A person commits the crime of encouraging child sexual abuse in the
second degree if the person:
“(a)(A)(i) Knowingly possesses or controls, or knowingly accesses with
the intent to view, a visual recording of sexually explicit conduct involving a
child for the purpose of arousing or satisfying the sexual desires of the person
or another person; or
“(ii) Knowingly pays, exchanges or gives anything of value to obtain or
view a visual recording of sexually explicit conduct involving a child for the Cite as 351 Or App 738 (2026) 743
and unlawful sexual penetration in the first degree. In his
affidavit, Pomeroy wrote that in his training and experience
“individuals in [sic] engaged in child pornography will download and upload unlawful images and videos from via [sic]
a variety of internet-based websites and applications. Those
unlawful images and videos are often shared and traded
among other users engaged in that activity via hyperlinks.”
Pomeroy also described the document titled “A Serious Man.”
Pomeroy explained that he found posts online that said that
one of the websites listed on the document had been taken
down because it hosted child pornography, and that the
name of another website was a reference to father-daughter incest. Based on his research, Pomeroy believed he had
probable cause to search the laptop for evidence of encouraging child sexual abuse in the second degree, sexual abuse in
the first degree, and unlawful sexual penetration in the first degree. Pomeroy requested, and was granted, a warrant to
search, seize, and analyze the laptop for multiple types of
digital evidence—both evidence that was located on the
laptop, such as media files, as well as cloud-based evidence
such as evidence “identifying the existence and use of cloud
storage accounts, including service providers, usernames,
and passwords.” That warrant authorized a search for the
following categories of evidence: (1) “user identification for digital devices and digital evidence”; (2) “log-in and password information for digital devices and digital evidence”;
(3) “[m]edia [f]iles” such as “pictures, videos, and associated data”; (4) “[i]nternet [u]sage”; (5) “[r]ecords of [c]ommunication * * * including content of communications”; (6) evidence
“identifying the existence and use of cloud storage accounts,
purpose of arousing or satisfying the sexual desires of the person or another
person; and
“(B) Knows or is aware of and consciously disregards the fact that creation
of the visual recording of sexually explicit conduct involved child abuse; or
“(b)(A) Knowingly pays, exchanges or gives anything of value to observe
sexually explicit conduct by a child or knowingly observes, for the purpose
of arousing or gratifying the sexual desire of the person, sexually explicit
conduct by a child; and
“(B) Knows or is aware of and consciously disregards the fact that the
conduct constitutes child abuse.
“(2) Encouraging child sexual abuse in the second degree is a Class C
felony.”
744 State v. Klaus
including service providers, usernames, and passwords”;
and (7) evidence related to certain specific websites.
The search warrant was executed by Digital
Forensics Investigator Hunter. The search brought up every
media file on the computer, including “carved” files, which
means files that had been previously deleted, and “cached”
files, which create automatic copies of viewed images to store on the computer. Hunter found around 1,500 pictures that he
believed showed minors engaged in sexually explicit conduct.
He found them in “[v]arious locations,” but did not specify the exact locations of each of the CSAM files he found. Hunter
did, however, testify that “your typical carved images that we talked about, that deleted space” were some of the “various
locations” in which he found images. He also found one image
in an “Adobe Bridge cache[,]” which means that a user deleted
the image but the image remained in the software program’s
cache. Hunter also found 52 videos of Z in a “little nuanced
location” of a back-up of a phone that had been saved on the
laptop. The videos were on a phone that someone had used a
“program” to back up, which transferred those files on to the
computer. The phone was named Steve’s iPhone.2 Seven of the
videos contained nudity and appeared to be taken from a hidden camera in Z’s bedroom. Hunter also found internet browsing history and searches that referred to child pornography.
C. Defendant’s Motion to Suppress
Defendant moved to suppress the evidence found on
the laptop. In his written motion, defendant argued that he
had constitutionally protected interests in the laptop that
were violated by a warrant that was insufficiently particular.3 Defendant contended that the warrant, as written,
lacked specificity because it authorized a search for “almost
any information or data” in his laptop, with “nothing in the
computer * * * that is off-limits.” Defendant further argued
that the warrant was overbroad because it allowed for a
search of evidence beyond the time period where the crimes
were alleged to have occurred, and beyond the scope of probable cause as it related to the “Serious Man” document.
2
Defendant’s first name is Steve.
3
Defendant also argued that the warrant lacked probable cause that he committed any crime, but he has abandoned that argument on appeal. Cite as 351 Or App 738 (2026) 745
The state, in its written response, argued that
defendant did not have a possessory interest in the laptop at
the time it was seized by law enforcement, defendant abandoned his constitutionally protected property interest in the
laptop because he separated himself from it once the divorce
was finalized, Carder had authority to consent to the search
because the laptop was shared marital property, and the
warrant—if required at all—was sufficiently particular.
The trial court denied defendant’s motion to suppress. The court concluded that Carder owned the laptop because, although it was initially marital property, it
became Carder’s in the divorce when she kept the laptop and
defendant did not seek an arbitrator’s help to claim it. The
court further ruled that Carder, as the owner of the laptop,
had “the personal privacy interest in it” and could do anything she wanted to with it, including consent to a search.
Alternatively, the court ruled that Carder was “at least joint owner” of the laptop with “at least a third party interest [in] it.” The court did not reach any issues with the warrant.
Defendant proceeded to a stipulated facts trial
where he was convicted, and this appeal followed.
II. ANALYSIS
We begin with a discussion of the nature of defendant’s constitutionally protected interests in the laptop at
the time it was seized and searched. After concluding that
defendant had privacy and possessory interests in some, but
not all, of the contents of the laptop, we consider whether
defendant abandoned those interests and whether Carder
could validly consent to an invasion of those interests.
Finally, we examine whether the warrant was sufficiently
particular. We conclude that defendant did not abandon his
Article I, section 9, interests in the contents stored outside his laptop (such as cloud services or records of internet usage held by third parties), Carder’s consent was invalid, and the
warrant was insufficiently particular.
A. Defendant’s Privacy Interest
Among other rights, Article I, section 9, of the Oregon
Constitution grants “the people” the right to be “secure * * * 746 State v. Klaus
against unreasonable search” of their “effects.” “A search
occurs when a person’s privacy interests are invaded.” State
v. Voyles, 280 Or App 579, 584, 382 P3d 583, rev den, 360 Or
751 (2016) (internal quotation marks omitted). If a person
has no privacy interest in property to begin with, then a
search has not occurred. State v. McCrary, 266 Or App 513,
517, 337 P3d 1008 (2014).
“In Oregon, the right to privacy—the individual
freedom from government scrutiny—protected by Article I,
section 9, is not defined by private property or contractual
rights, although such rights may inform the analysis in a
given case.” State v. Lien/Wilverding, 364 Or 750, 759-60,
441 P3d 185 (2019) (Lien). Rather, “the right to privacy protected by Article I, section 9, ‘is the freedom from scrutiny
as “determined by social and legal norms of behavior, such as
trespass laws and conventions against eavesdropping.”’ ” Id.
(first quoting State v. Newcomb, 359 Or 756, 764, 375 P3d
434 (2016), then quoting State v. Campbell, 306 Or 157, 170,
759 P2d 1040 (1988), emphasis in Lien). “[T]he fundamental question * * * is whether the government’s conduct, ‘if
engaged in wholly at the discretion of the government, will
significantly impair “the people’s” freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on “unreasonable searches” set forth in
Article I, section 9.’ ” Id. (quoting Campbell, 306 Or at 171); see also State v. De Witt Simons, 375 Or 70, 80, 587 P3d
311 (2026) (“Article I, section 9, on the other hand, does not focus on the expectation of privacy of the individual; rather, it focuses on the expectations that society sets for the conduct of our government.”).
The right to privacy may also extend to objects that
are discarded, or no longer in their original owner’s physical possession. In Lien, for example, the defendants placed their
trash in an opaque, closed garbage bin, and took their bins
out to the street, expecting their trash to be collected and
commingled with the other homes in the neighborhood. 364
Or at 753. The police, however, arranged for the trash collectors to retrieve the defendants’ trash and search it, uncovering evidence of crimes. Id. In concluding that the defendants
had a privacy interest in their trash, the Supreme Court
Cite as 351 Or App 738 (2026) 747
“first consider[ed] general social norms of behavior.” Id. at
760. The court looked to local news articles, case law, and law review articles to conclude that “most Oregonians would consider their garbage to be private and deem it highly improper
for others—curious neighbors, ex-spouses, employers, opponents in a lawsuit, journalists, and government officials, to
name a few—to take away their garbage bin and scrutinize
its contents.” Id. at 761-62 (citing Chris Lydgate & Nick
Budnick, Rubbish!, Willamette Week (Dec 11, 2017), http://
www.wweek.com/portland/article-1616-rubbish.html-2 (last
accessed May 1, 2019), California v. Greenwood, 486 US 35,
50, 108 S Ct 1625, 100 L Ed 2d 30 (1988) (Brennan, J., dissenting), and Jonathan Simon, Katz at Forty: A Sociological
Jurisprudence Whose Time Has Come, 41 UC Davis L Rev
935, 962 (2007)). Even the trash collector in the case testified that he would not collect garbage from a customer at
the request of a private citizen because doing so would be an
invasion of privacy. Id. at 761.
The court then considered “legal norms concerning
personal privacy,” observing that “[t]he common law, as well
as other sources, such as statutes, administrative rules, and
local ordinances, are informative concerning existing legal
norms of behavior.” Id. at 762. The court found it particularly relevant that the government’s act, if done in a non-law-enforcement setting, would violate general civil law. The court
observed that, in Oregon, there was a common law cause of
action for tortious invasion of privacy, which was one of the
few causes of action that allow for mental suffering damages. Id. at 763.
Applying those principles to this case, defendant did
not have a privacy interest in the media files that were located on the laptop, because, under prevailing “legal norms” and
“social norms,” the laptop was no longer his property after
the divorce, and thus his freedom from government scrutiny
of those files was not “significantly” impaired. As the trial
court explained, under Oregon law, when a married couple
divorces, a court determines ownership of marital property
(including marital assets purchased during the marriage,
like the laptop). See ORS 107.105(1)(f) (providing jurisdiction for the court to divide property “as may be just and proper
748 State v. Klaus
in all the circumstances”). Once the dissolution judgment is
filed, “the property division ordered shall be deemed effective for all purposes.” ORS 107.105(3).
Here, the dissolution judgment incorporated the
parties’ arbitration agreement. That agreement stated that
the parties agreed that they “will have no problem dividing
their personal property, and had a brief discussion about
use of the trailer to do this. The Arbitrator can be involved
further, even after entry of Judgment, if there is any dispute about the personal property division.” On numerous
occasions, defendant either collected personal property, or
received personal property, but never asked for the laptop,
disputed ownership of the laptop, or involved the arbitrator
further. Thus, under the divorce judgment, Carder owned
the laptop and the files located on it.
Moreover, there is a legal and social norm that an
ex-spouse does not have a right to privacy in personal property possessed by the other ex-spouse in a divorce. That norm
is, in fact, reflected in the parties’ divorce judgment. That
judgment awarded “any keys that open or close property” to
be delivered to the spouse receiving the locked property:
“Each party is awarded keys that open or close property
awarded to that party. This includes physical keys to real
property, vehicles, lock boxes, computer systems, and the
like, as well as electronic keys such as garage door openers.
The party having keys associated with property awarded
to the other party shall immediately deliver said keys to
the other party, keeping no copies for him or herself.”
(Emphasis added.) In other words, an ex-spouse cannot keep
the physical or electronic keys to property awarded to the
other spouse because they no longer have any possessory or
privacy interest in the property. Under those norms, defendant had no “right to privacy” in files that were located
on the laptop, because defendant no longer owned the laptop. Because defendant did not have a “right to privacy” in
those files, no search of those files under Article I, section 9, occurred.4
4
For similar reasons, no search as to those files occurred under the Fourth Amendment as well. See Katz v. United States, 389 US 347, 351-52, 88 S Ct 507, 19 L Ed 2d 576 (1967) (explaining test under Fourth Amendment). Cite as 351 Or App 738 (2026) 749
However, just because defendant no longer owned
the laptop—that is, no longer had a possessory ownership
interest in the laptop itself under the norms of property law— does not necessarily mean that defendant had no privacy
interest in anything accessible from the laptop. The search
warrant for the laptop sought more than just media files that
defendant may have created that were located on the laptop:
it also sought access to over nine years’ worth of defendant’s digital data which could be stored elsewhere: cloud storage
accounts, “including service providers, usernames, and passwords,” during the time frame of the criminal activity; internet browsing history; and records of communication.
The Supreme Court has recently explained that
“Oregonians enjoy a right to privacy [under Article I, section 9,] in their internet communications, even when accessing the internet via a third-party provider.” De Witt Simons,
375 Or at 88. In De Witt Simons, the defendant accessed
the internet from his laptop at home through a nearby
public Wi-Fi network. Id. at 73. The owner of the Wi-Fi
network provided the police with a year’s worth of all the
unencrypted traffic it had collected from the defendant’s
computer, which included the content of the communication
that the computer was having with the internet. Id. at 76.
The police identified the defendant as the owner of the computer by employing a directional antenna at times when the
defendant was logged onto the Wi-Fi network to determine
the physical location of the defendant’s signal. Id. The police then obtained a warrant to search the defendant’s laptop,
which revealed CSAM. Id. at 77.
The De Witt Simons court concluded that the defendant had an Article I, section 9, privacy right in “internet
activities” conducted on the public Wi-Fi network. After
acknowledging that “the use of the internet is a modern
necessity, and wireless access is part and parcel of that,”
375 Or at 83, the court concluded that the “societal norm
that a person’s internet searches and browsing activities are
reasonably considered to be private” granted them constitutional protections. Id. at 87; see also id. at 88 (“[T]he mere fact that, to access the internet, society has accepted that
multiple private entities along the path of a communication
750 State v. Klaus
may, in theory, monitor the traffic does not equate to social
acceptance that the government would use Wi-Fi networks
to surveil its citizenry.”).
If the defendant in De Witt Simons had a privacy
right in internet use conducted through a third party’s public Wi-Fi, then defendant here must have a privacy right in
the digital data stored by third parties at issue in this case. Here, the state sought not only access to files stored on the
laptop that defendant no longer owned, but also access to
digital data stored by third parties: for example, cloud services, communications, and internet browsing activity, all of
which could potentially be accessed through other devices.
While social and legal norms in this case would allow for
government intrusion on the files stored directly on the laptop, a person would likely object to a government search of
years of his Dropbox, Google Drive, or iPhoto Library, merely
because he logged onto those accounts on a shared computer
at some point in the past. See State v. Bellar, 231 Or App
80, 110, 217 P3d 1094 (2009), rev den, 348 Or 291 (2010)
(Sercombe, J., dissenting) (“[O]ur social norms are evolving
away from the storage of personal data on computer hard
drives to retention of that information in the ‘cloud,’ on servers owned by internet service providers. That information
can then be generated and accessed by hand-carried personal computing devices. I suspect that most citizens would
regard that data as no less confidential or private because
it was stored on a server owned by someone else.”). Such an
invasion, absent a warrant, would constitute an unreasonable search under Article I, section 9.5
B. Abandonment
The state argues, as an alternative ground for
affirmance, that even if defendant retained some privacy
interest in the digital data following the divorce, defendant
abandoned that interest through affirmative actions (or failures to act) that demonstrated an intent to relinquish his
interests. The trial court did not make express findings on
5
We emphasize that, unlike the defendant in De Witt Simons, who retained a privacy right in his internet usage stored by third parties (and, presumably, in all the content remaining on his laptop), defendant here retained no privacy right in communications stored on the laptop itself, because defendant no longer owned the laptop following the divorce.
Cite as 351 Or App 738 (2026) 751
abandonment; however, the parties argued abandonment
below, and the record was adequately developed, so we may
resolve the argument on appeal. See Sherertz v. Brownstein
Rask, 314 Or App 331, 341, 498 P3d 850 (2021), rev den,
369 Or 338 (2022) (“If [an] argument is properly presented
again on appeal and raises a question of law, we may simply resolve it, typically remanding only if it is necessary
for the trial court to make factual findings from conflicting
evidence, exercise discretion, or the like.”). The issue before us is whether the facts support that defendant abandoned
his privacy interest in data stored outside the laptop. As we
explain, the facts do not support that conclusion.
A person with a protected privacy interest in property can relinquish that interest by abandoning the property. State v. Cook, 332 Or 601, 34 P3d 156 (2001). Any
abandonment must be clear and requires “an unequivocal
manifestation of an intention to relinquish all constitutionally protected interests in the affected property.” Bunch, 305 Or App at 69. “It is the state’s burden to prove by a preponderance of the evidence that a defendant abandoned his
interest in a given item of property.” State v. Laney, 318 Or
App 509, 516, 507 P3d 308 (2022).
We have previously identified several factors that
may be relevant in assessing whether a person has abandoned their Article I, section 9, interest:
• Actions taken by the police in relation to the property (e.g., whether they lawfully requested defendant to step away from the property, obtained it
through illegal conduct, etc.)
• Location where the property was left (e.g., public or
private property)
• Circumstances surrounding how the defendant left
the property (e.g., left in plain view, hidden, left
in a way that others would find it, left in a way to
demonstrate continuing control)
• Whether the defendant gave up their rights to control the disposition of the property.
State v. Ipsen, 288 Or App 395, 399-400, 406 P3d 105 (2017).
752 State v. Klaus
At the outset, we note that our existing case law,
which so far has only identified factors for determining
abandonment of physical property, may not be as helpful in
determining the proper analytical framework for analyzing
abandonment of digital property. For example, the “location where the property was left” poses several questions.
Does digital data accessible through the cloud exist on the
devices on which the data can be accessed or on a third-party’s servers? See United States v. Hunt, 153 F4th 858, 865
(9th Cir 2025) (holding the Fourth Amendment’s “reasonable expectation of privacy framework” requires adapting
the abandonment doctrine in light of the “unique characteristics of cellphone data” and concluding that “the abandonment doctrine can apply to cellphone data but courts should
analyze the physical phone and its data separately to determine whether the circumstances allow the conclusion that
there was an intent to abandon either”); State v. Mansor,
363 Or 185, 217, 421 P3d 323 (2018) (“We do not think that
it is useful to conceive of a computer as consisting of multiple ‘rooms’ or containers, and a valid warrant to search a
computer need not identify ‘places’ to search at that level of abstraction.”).
However, some governing principles undoubtedly apply. First, we are mindful that the United States
Supreme Court has explained that the privacy interests in
digital data are equal to or surpass those of a home, Riley
v. California, 573 US 373, 396-97, 134 S Ct 2473, 189 L Ed
2d 430 (2014), and the Oregon Supreme Court has found
that reasoning to be “persuasive.” Mansor, 363 Or at 222
(citing Riley). Second, the vast majority of people conduct
their business online, making digital data an “essential”
and necessary part of modern life. See De Witt Simons, 375
Or at 82-84 (“Nearly every member of society, young or old,
rich or poor, housed or unhoused, will use the internet to
conduct what they intend to be private business—indeed, in
many cases they must do so. In our age of paperless billing
and cloud-based storage, health records are accessed and
finances are managed online.”); Steven Arango, Cloudy with
a Chance of Government Intrusion: The Third-Party Doctrine
in the 21st Century, 69 Cath U L Rev 723, 734 (2020) (advocating for greater protection against warrantless searches
Cite as 351 Or App 738 (2026) 753
of cloud data, and stating, “Today’s world requires speed,
access, and reliability—only the cloud can provide all three
of these features. Cloud storage is not merely beneficial to
everyday life, it is essential.” (Footnotes omitted.)). In the context of abandonment, then, the intent to relinquish interests in digital data must be exceedingly clear, to overcome
such strong privacy interests in an “essential” facet of modern life.6
Put together, we conclude that the state did not
meet its burden to demonstrate that defendant intentionally relinquished all of his protected interests in his digital data stored by third parties. The state cannot point to any
evidence in the record, such as defendant giving his cloud
accounts and passwords to another person to use instead of
him, canceling his email accounts, or demonstrating affirmatively that he no longer wished to continue using his
accounts, that would indicate he no longer had rights in his
digital data. The state merely points to defendant’s inaction as it relates to the physical laptop itself: defendant did not attempt to hide the laptop, did not manifest an attempt
to maintain control over it, failed to assert any ownership
interest in the laptop during the divorce proceedings, and
6
State courts that have compared abandonment of a digital device, like a laptop or a phone, to abandonment of all the digital data accessible from the device are split, although it appears that the majority of jurisdictions do not apply a different test for abandonment of a digital device from its data. See Commonwealth v. Elverton, No. 1183 WDA 2022, 2023 WL 8883434 at *46 (Pa Super Ct 2023) (“Since Riley, lower courts have not reached a clear consensus on how Riley effects the abandonment doctrines as applied to cell phones, if at all.”); State v. Brown, 423 SC 519, 524, 815 SE 2d 761, 764 (2018) (upholding warrantless search of password-protected cellphone under Fourth Amendment abandonment doctrine when the phone had been left in police custody for days without anyone claiming it); State v. Samalia, 186 Wash 2d 262, 274, 375 P3d 1082, 1088 (2016) (declining to adopt “special rules” for abandoned cell phones). However, at least one court, applying the privacy rationale from Riley, has concluded that a “categorical rule permitting warrantless searches of abandoned cell phones, the contents of which are password protected, is * * * unconstitutional.” State v. K. C., 207 So 3d 951 (Fla 4th Dist Ct App 2016), cert den, 582 US 922 (2017). And it appears that, out of the few federal courts that have addressed the issue, the Ninth Circuit has advocated for a similar approach as ours. See Hunt, 153 F 4th at 866-68 (following Riley, applying the abandonment doctrine to cellphones “while accounting for the unique aspects of cellphone data” may require courts “to distinguish a digital device from the data it contains to preserve the degree of privacy that existed at the time of the Fourth Amendment’s adoption” but declining to conduct a separate analysis because the record did not establish that the defendant had abandoned his phone).
754 State v. Klaus
failed to return to arbitration after the divorce. Those facts do not address steps defendant did or did not take regarding
his digital data. The state thus failed to meet its burden to
demonstrate abandonment of the digital data that was not
solely on the laptop.
C. Consent
The state next argues, as an alternative ground for
affirmance, that Carder could provide valid consent for police to search defendant’s digital data on the laptop. Like abandonment, the parties argued consent to the trial court and
sufficiently developed the factual record, so we may affirm on that basis. Sherertz, 314 Or App at 341. After considering the issue, however, we decline to affirm on consent grounds.
Consent is an exception to the warrant requirement. State v. Bonilla, 358 Or 475, 486, 366 P3d 331 (2015).
“When the state relies on consent, it must prove by a preponderance of the evidence that ‘someone having the authority
to do so’ voluntarily gave the police consent to search the
defendant’s property and that any limitations on the scope
of the consent were complied with.” Id. at 481 (quoting State
v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994)). “In determining whether a third party had the authority to consent,
the trial court ‘must consider the totality of circumstances,
including facts that may not have been available to the
police when the decision to search was made.’ ” Voyles, 280
Or App at 585 (quoting Bonilla, 358 Or at 492).
In the physical search context, when two people
have actual authority over a shared space, either person
may consent to a search, “based on her or his own property
interest.” Bonilla, 358 Or at 486; see also State v. Dowdy,
117 Or App 414, 419, 844 P2d 263 (1992) (where person with
common authority over hotel room consented to a search,
the defendant’s “privacy interest in the room was not violated”). “That is the risk of cotenancy.” State v. GonzalezCoria, 318 Or App 524, 534, 508 P3d 52, rev den, 370 Or 197
(2022).
Here, the state did not meet its burden, based on
the totality of the circumstances, to show that Carder had
actual authority to consent to the search of all the digital
Cite as 351 Or App 738 (2026) 755
data, as opposed to the data that was located on the laptop.
There was no evidence in the record that Carder had access
to defendant’s cloud accounts, or had a property interest in
defendant’s digital data, such that she could consent to a
search.
In arguing otherwise, the state points to the fact
that Carder knew the password to the laptop and had full
access to the laptop. See State v. Solorio, 304 Or App 666,
675, 468 P3d 522 (2020) (suggesting that girlfriend could
have authority to consent to a search of a safe if defendant
gave her the combination along with permission to enter the
safe). The state also notes that there was no evidence in the
record that defendant had a right to exclude others from the
laptop. See Voyles, 280 Or App at 586 (sufficient evidence
that property owners could consent to a search of their property when, significantly, there was “nothing in the record
to indicate that defendant had any exclusive or even joint
control over the third parties’ real properties that gave her
the right to exclude the property owners from using parts of
their own properties” (emphasis in original)).
Those arguments miss the mark. While Carder, as
a co-owner, may have been able to consent to a search of
the laptop itself, that is qualitatively different from whether she could consent to a search of defendant’s cloud account,
or externally stored records of communication or internet
browsing history. There was no evidence that defendant
granted Carder permission to access his full array of digital data, as distinct from the data that was located on the
laptop. See State v. Sobczak, 347 Wis 2d 724, 751, 833 NW
2d 59, 72 (2013) (consent of girlfriend to search the defendant’s laptop was valid when the defendant granted the
girlfriend explicit permission to use the laptop without any
limitation, the girlfriend used the laptop in a common area
of the house, the police opened only the files that the girlfriend found before applying for a search warrant, and the
files inspected on consent were not password protected and
were “accessible to anyone.”). The state thus failed to meet
its burden to establish that Carder possessed authority to
consent to a search of defendant’s digital data stored externally from the laptop.
756 State v. Klaus
D. Warrant
As we have explained, defendant maintained a privacy interest in his digital data, notwithstanding Carder’s
ownership of the laptop following the divorce and purported
consent to its search. Given that the state does not argue
that any other exception to the warrant requirement applied
to defendant’s digital data, police were required to obtain
a warrant in order to invade defendant’s privacy interests
through a search. State v. McCarthy, 369 Or 129, 131, 501
P3d 478 (2021). As mentioned, police here did obtain a warrant after seizing defendant’s laptop. The next issue, then,
is whether the warrant obtained by police was sufficient to
justify the search. For the reasons that follow, the warrant
was deficient in several aspects.
A warrant must be supported by probable cause—
that is, “the facts upon which the warrant is premised must
lead a reasonable person to believe that seizable things
will probably be found in the location to be searched.” State
v. Anspach, 298 Or 375, 380-81, 692 P2d 602 (1984); ORS
133.545(6). “Probably” means “more likely than not.” State
v. Maxfield, 133 Or App 371, 374, 891 P2d 1342, adh’d to
as modified on recons, 134 Or App 542, 896 P2d 581 (1995)
(internal quotation marks omitted). For Fourth Amendment
purposes, probable cause means “a fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 US 213, 238, 103 S Ct 2317, 76 L Ed 2d 527 (1983).
In addition to being supported by probable cause, a
warrant must be sufficiently particular, that is, it must “particularly describ[e] the place to be searched, and the person
or thing to be seized.” Or Const, Art I, § 9; ORS 133.565(2)
(b); US Const, Amend IV (providing same). The purpose of
the particularity requirement is a prohibition against “general warrants whereby administrative officers determine
what is and what is not to be seized.” State v. Rose, 264 Or
App 95, 106, 330 P3d 680, rev den, 356 Or 400 (2014) (internal quotation marks omitted); Andresen v. Maryland, 427
US 463, 480, 96 S Ct 2737, 49 L Ed 2d 627 (1976) (general
warrants that allow “exploratory rummaging in a person’s
belongings” are prohibited by the Fourth Amendment).
Cite as 351 Or App 738 (2026) 757
To meet the particularity requirement of Article I,
section 9, “a warrant authorizing the search of digital
devices ‘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.’ ” State v. Myers, 338 Or App 59, 565 P3d 463 (2025)
(quoting Mansor, 363 Or at 218). “If the warrant describes
the information sought with that degree of specificity, and
if the supporting affidavit supplies probable cause to justify the described search, then the warrant satisfies the particularity requirement of Article I, section 9.” State v. Turay, 371 Or 128, 149-50, 532 P3d 57 (2023); see also Mansor, 363 Or
at 219-20 (applying that standard and concluding that the
warrant to search for internet history from a specific date
was not facially unlawful).
The warrant must also satisfy the “overbreadth”
component of Article I, section 9. That means that the warrant “must not authorize a search that is broader than the
supporting affidavit provides probable cause to justify.”
Turay, 371 Or at 146 (internal quotation marks omitted).
Here, in the probable cause affidavit to support the
application for the warrant, Pomeroy stated that he believed
the laptop would contain evidence of the crimes of encouraging child sexual abuse in the second degree, ORS 163.686;
sexual abuse in the first degree, ORS 163.427; and unlawful
sexual penetration in the first degree, ORS 163.411.
With respect to those crimes, Pomeroy stated that
defendant was arrested in June 2020 as a result of “an ongoing investigation with [defendant] and [Z].” Pomeroy stated
that sexual abuse against Z occurred between 2010 and
2017, domestic violence against Carder happened on May 8,
2019, and defendant moved out of the home on May 20, 2019.
Pomeroy also explained the facts around defendant and
Carder’s divorce, and how Carder discovered the “A Serious
Man” document. Pomeroy described that, in his research of
some of the links in the document, he found that one of the
websites was pornographic and reported by users as containing CSAM, and another had a title that, according to
Pomeroy’s understanding of the Bible, referenced daughters
758 State v. Klaus
having an incestual relationship with their father. Finally,
Pomeroy also explained that he knew, from his training and
experience, that “individuals in [sic] engaged in child pornography will download and upload unlawful images and
videos from via a variety of internet-based websites and
applications,” and that “[t]hose unlawful images and videos
are often shared and traded among other users engaged in
that activity via hyperlinks.” Pomeroy did not explain, in
his affidavit, the connection between “individuals engaged
in child pornography” and the crimes of sexual abuse in the
first degree, ORS 163.427; and unlawful sexual penetration
in the first degree, ORS 163.411, nor any reason why, in his
training and experience, he knew that individuals engaged
in sexual abuse or unlawful sexual penetration store evidence of their crimes on a computer. Pomeroy also did not
describe the alleged incidents that occurred against Z.
The warrant here contained the following seven
search commands to search for evidence of the crimes of
encouraging child sexual abuse in the second degree, ORS
163.686; sexual abuse in the first degree, ORS 163.427;
and unlawful sexual penetration in the first degree, ORS
163.411:
“Evidence related to Digital Devices and Digital
Evidence:
“[1] Any and all documentation regarding user identification for digital devices and digital evidence (including
but not limited to billing and purchase documentation);
“[2] Any and all documentation regarding log-in
and password information for digital devices and digital
evidence;
“And as to the above digital devices and digital evidence, to further search for, seize, and analyze the digital
items for the following:
“[3] Media Files (pictures, videos, and associated
data)—evidence related to the crimes under investigation
during a time frame from January 1, 2010 to May 20, 2019;
“[4] Internet Usage—evidence related to the crimes
under investigation of connecting to, searching, and
Cite as 351 Or App 738 (2026) 759
browsing the internet during a time frame from January 1,
2010 to May 20, 2019;
“[5] Records of Communication—evidence related to
the crimes under investigation of engaging in communications (voice, video, email, text or otherwise), including content of communications, during a time frame from January
1, 2010 to May 20, 2019:
“[X] All records of communication
“[6] Cloud Storage—evidence related to the crimes
under investigation identifying the existence and use of
cloud storage accounts, including service providers, usernames, and passwords, during a time frame from January
1, 2010 to May 20, 2019;
“[7] Websites—evidence related to the crimes under
investigation of Tumblr.com, lmgbox.com and Pixvenue.
com during a time frame from January 1, 2010 to May 20,
2019.”
We address each command in turn.
1. First and Second Search Commands
The first two search commands fail the particularity requirement, because they seek too much nonspecific
information without any temporal limitation. See State v.
Bock (A169480), 310 Or App 329, 334, 485 P3d 931 (2021)
(Bock) (“Any interpretation of the search command broad
enough to permit the use of any material discovered on the
cell phone relevant to establish the device owner or user’s
identity is impermissibly nonspecific.” (Emphasis in original.)). In fact, the commands bear a striking resemblance
to the impermissible commands from Bock. In that case, we
concluded that a search command for “Any evidence identifying the owner/user of the device” was insufficiently particular because it required the executing officer to employ
discretion in determining what to seize and thus was “tantamount to a general warrant.” Id. at 335 (emphasis added).
The first and second commands here, which seek “any and
all documentation” regarding “user identification” for digital devices and digital data, as well as “log-in and password
information,” without any temporal limitation, are insufficiently particular.
760 State v. Klaus
2. Third and Fourth Search Command
The third search command sought “Media Files
(pictures, videos, and associated data)—evidence related to
the crimes under investigation during a time frame from
January 1, 2010 to May 20, 2019.” The fourth search command sought “Internet Usage—evidence related to the crimes
under investigation of connecting to, searching, and browsing the internet during a time frame from January 1, 2010 to
May 20, 2019.” To the extent that those commands seek digital data protected by Article I, section 9, those commands
are insufficiently particular and overbroad. As mentioned,
defendant was indicted for sexually abusing his stepdaughter based on acts that occurred between 2010 and 2016, and
Pomeroy stated that the abuse occurred until 2017. There
was nothing in the affidavit or the search warrant application that provided any reason why evidence of those crimes
would be found on defendant’s laptop for several years following the end of the abuse. See State v. Serrano (A173250),
324 Or App 453, 459, 527 P3d 54 (2023) (affidavit cured lack
of specificity in warrant when it “described in detail the videos and photos that the officer believed were evidence of the
charges of sodomy and rape * * * that would be found on [the]
defendant’s phone” and “described the possible date ranges
when the videos and photos were taken and when they had
been uploaded to” various websites). The search command
allowed the forensic specialist conducting the search to look
for “evidence related to “all crimes” that were under investigation without distinguishing between the crimes related
to abuse of Z rather than child pornography, even though it
did not establish that the laptop would contain media files
or internet communications related to Z’s abuse. As such,
that command failed to describe the evidence “with as much
specificity as reasonably possible under the circumstances
[ ] so as to limit the enhanced risk of intrusion into defendant’s privacy interests” with a digital search, Turay, 371
Or at 151. That is so because the command authorized a
search for media files or internet communications related to
Z from years beyond those for which Pomeroy had probable
cause to believe that a crime had been committed against
her. Moreover, the state testified that defendant did not even own the laptop prior to June 2010. Thus, even to the extent
Cite as 351 Or App 738 (2026) 761
that the “Serious Man” document, in conjunction with the
investigation of defendant, provided probable cause that
evidence of CSAM would be found on defendant’s computer
for the duration of defendant’s ownership of the device, the
command should have limited itself to the dates defendant
actually owned the device. See State v. Gaskill, 340 Or App
459, 468-69, 571 P3d 769 (2025) (a cell phone search warrant that sought drug-related data beginning in August
2021 was sufficiently particular, notwithstanding the fact
that the first controlled buy did not happen until several
months later, because affidavit established that the defendant was under investigation for several months).
3. Fifth Search Command
The fifth search command sought “Records of
Communication—evidence related to the crimes under
investigation of engaging in communications (voice, video,
email, text or otherwise), including content of communications, during a time frame from January 1, 2010 to May
20, 2019.” It further indicated it was seeking “all” records
of communication. That command is insufficiently particular. It lacks any subject matter limitations on the communication, does not say who the communications would be
between, and has a date range that is too long. Compare
Turay, 371 Or at 151-52 (warrant search categories of “any
other evidence related to the crimes” under investigation
and “any evidence related to” ride-share apps were insufficiently particular because they sought information “at
any time, in any location, in any circumstance” and “both
failed to include dates, subject matter limitations, or other
parameters that would have provided a reasonable degree of
specificity to an officer executing those commands—despite
the fact that more specific details about time periods and
physical locations were known to the investigating detective” (internal quotation marks omitted)) with Meyers, 338
Or App at 70-71 (digital search warrant was sufficiently
particular when it specified the phone numbers involved in
communication with an undercover police officer and thus
“limited the search to only the communications between the
relevant phone numbers” and “effectively limited the search
to the relevant timeframe”) and State v. Rose, 264 Or App
762 State v. Klaus
95, 109, 330 P3d 680, rev den, 356 Or 400 (2014) (warrant
was sufficiently particular because it stated that police
could search for evidence of child sex abuse crimes “located
in the electronic files stored in defendant’s Yahoo account”). And similarly to the third and fourth command, it sought
evidence on the laptop prior to defendant actually owning
the laptop.
5. Sixth Search Command
The sixth search command sought “Cloud Storage—
evidence related to the crimes under investigation identifying the existence and use of cloud storage accounts, including service providers, usernames, and passwords, during a
time frame from January 1, 2010 to May 20, 2019.” For similar reasons to the fifth search command, that search command was insufficiently particular. As mentioned, individuals store a vast amount of data through their cloud accounts.
A search command that authorizes intrusion into the use of
one’s entire cloud account for “evidence related to the crimes under investigation” presents an “enhanced risk of intrusion into [a] defendant’s privacy interests,” Turay, 371 Or at 151; see also State v. Savath, 298 Or App 495, 501, 447 P3d
1 (2019) (concluding that the digital “warrant’s summary
characterization of the information sought—‘related to controlled substances offenses’—was insufficient to apprise the
executing officer of which items were or were not subject to
the warrant”).
6. Seventh Search Command
The seventh search command sought “Websites—
evidence related to the crimes under investigation of Tumblr.
com, lmgbox.com and Pixvenue.com during a time frame
from January 1, 2010 to May 20, 2019.” Other than searching for evidence beyond the dates that defendant actually
owned the computer, that command satisfies the particularity requirement.
E. Remedy
We conclude that defendant possessed a privacy
interest in his digital data that was not stored on the laptop and that the state did not meet its burden to demonstrate
Cite as 351 Or App 738 (2026) 763
an exception to the warrant requirement. Because the warrant lacked the specificity required under Article I, section
9, it was invalid. On remand, the trial court can determine
whether any of the evidence seized was stored by a third
party and suppress that evidence.
Reversed and remanded.