State v. Pitcher

Summary

The Oregon Court of Appeals affirmed Chad Brandon Pitcher’s convictions for first-degree manslaughter, unlawful use of a weapon, and felon in possession of a firearm. The court held that Pitcher lacked a protected privacy interest or reasonable expectation of privacy in copies of Facebook messages stored in the victim’s account records and upheld admission of those records under the business records exception to the hearsay rule. The opinion also addresses suppression, warrant-taint arguments, and the foundation required for electronically maintained business records.

Holdings

1. A sender does not retain a protected privacy interest under Article I, section 9, of the Oregon Constitution or a reasonable expectation of privacy under the Fourth Amendment in copies of messages delivered to and stored in the recipient's Facebook account records when the sender lacks access to or control over that account.
2. The court did not decide whether the DeJong burden-shifting framework applies when one warrant allegedly taints a separate warrant because, even assuming the R warrant was unconstitutional, defendant could not suppress the evidence without a protected privacy interest in the account records searched.
3. Facebook's records of R's account were admissible under OEC 803(6) because the state's records-custodian testimony and certificate of authenticity sufficiently established the business's record-making and record-keeping practices, reliability, and the accuracy of the copies, even though the foundational witness was not employed when the records were generated and Meta no longer retained the original records.
4. Even assuming that police violated defendant's Article I, section 11, right to counsel by questioning him without counsel present, any error was harmless because there was little likelihood that the statement affected the verdict.
5. The trial court did not plainly err by failing to define "initial aggressor" absent a request from defendant for a supplemental instruction.
6. The challenged prosecutorial statements did not warrant reversal because, even assuming they were improper, defendant failed to show that they were both obviously improper and incurable or that they denied him a fair trial.

Questions Presented

1. Whether defendant had a protected privacy interest under Article I, section 9, of the Oregon Constitution or a reasonable expectation of privacy under the Fourth Amendment in copies of Facebook messages he sent to R that were stored in R's Facebook account records.
2. Whether defendant could indirectly challenge the R-account warrant by alleging that a separate warrant for his own account was overbroad and tainted the evidence obtained from the R-account warrant.
3. Whether Facebook's records of R's account were admissible under the business-records exception in OEC 803(6), including whether the state's foundational witness had sufficient personal knowledge and whether the original records had to remain in existence.
4. Whether admission of defendant's custodial-interview statement violated his right to counsel under Article I, section 11, of the Oregon Constitution and, if so, whether any error was harmless.
5. Whether the trial court plainly erred by failing to define "initial aggressor" in the self-defense jury instructions.
6. Whether the prosecutor's challenged closing-argument statements were obviously improper and incurable so as to deny defendant a fair trial.

Disposition

affirmed