Search and Seizure - Beware the "Cut and Paste."

I have written about this issue of search and seizure and cell phones before, and in all likelihood, will continue to blog about because there will always be good material as long as human beings cling to their cell phones.

It is not often that the Courts take a firm stand limiting the power of police investigators (aka  CID, NCIS, OSI in the military) but one very recent case from the State of Oregon has floated to the surface and, as I read it, is a decided stand against sloppy "cut and paste" investigator work on search warrants. State v. Schult 2025 Ore. App. LEXIS 1487 *; 343 Ore. App. 376; 2025 LX 373838 (2025).

Having been in the military lawyer in the military justice world for well over two decades in addition to civilian defense practice, I have learned that law enforcement officers do not like to write and have little original thought or ability to analyze prose. The vast majority of the time this is not an issue, law enforcement has better things to spend their time on than whether an oxford comma is appropriate in a compound sentence. With military investigators proclivity to re-use documents, and as someone who has seen a lot of search authorizations, I know that search authorization suffer from 1) a lack of original thought 2) a propensity to cut and paste.

Cut and paste reared its ugly head recently in an Oregon State case. The specifics of the case are not important, other than it was an allegation of assault against two children, and police were able to get a search warrant signed for a defendant's "mobile device, computer, laptop and accessories" to see if they contained evidence of any kind of assault against any children. The problem was the accusation against the Accused was very specific to two neighboring children, and there was no evidence that he downloaded images of other children, or had physically assaulted anyone other than the two initial alleged victims. Everyone - government - defense and probably the Judge as well, agreed that the search authorization was a cut and paste job from the prior search authorization for a cell phone that the investigator had gotten signed by the county Magistrate. (A word about local County Magistrates - there is no requirement that a state Magistrate be an attorney or have any background in criminal law, likely contributing to the slop. Military Magistrates must be Judge Advocates, but unlike their civilian counterparts, if they sign three search warrants during their billet/assignment, they are considered experienced. Civilian magistrates sign a dozen a week.)

Unfortunately, the phones, computer and an accompanying sketchbook (paper material was in no way covered by the search authorization and apparently taken just for funnzies and later completely excluded as inadmissible at trial.) The government prosecutor refused to concede the obvious in that the search authorization was overbroad and therefore invalid.

The Oregon State Appellate Courts ruled that the mere assertion by law enforcement that in the "investigators experience" individuals who engage in assaults on children, will also have videos or photos of similar crimes on their phones  - but no specific evidence that the Accused had photos or videos) was entirely speculative and thereby inadmissible.

Cut and paste is a military issue too. In fact, it was probably invented at the Officer Basic Course by an enterprising Lieutenant. If you are handed a search authorization and your cell phone/computer/tablet/flash drive/ etc. etc. is taken, keep a copy of that document and give it to your attorney as soon as you can. This is your military lawyer and defense counsel's job, but you need to be engaged in your defense as well. Ask the questions and stay vigilant.