State v. Klaus

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 defen- dant 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 enforce- ment 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 lap- top, and the warrant was insufficiently particular and over- broad. 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 sup- press for errors of law, and we are bound by the trial court’s findings of fact, provided they are supported by constitu- tionally 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 dat- ing 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, includ- ing 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 defen- dant move out of the family home, or she would file a restrain- ing order. Defendant moved out and Carder packed up “much of [defendant’s] stuff” and dropped it off where he was stay- ing. Defendant’s daughters also brought over some of defen- dant’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 arbi- tration agreement between the parties, Carder and defen- dant 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 dissolu- tion 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 stor- age at that time, while the house was undergoing remedia- tion. 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 dis- trict 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 lap- top, 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 down- load 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-daugh- ter incest. Based on his research, Pomeroy believed he had probable cause to search the laptop for evidence of encourag- ing 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 pass- word 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]ommunica- tion * * * 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 hid- den camera in Z’s bedroom. Hunter also found internet brows- ing 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 partic- ular.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 prob- able 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 com- mitted 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 aban- doned 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 sup- press. The court concluded that Carder owned the lap- top 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 any- thing 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 defen- dant’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 pro- tected 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 fundamen- tal 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 under- lies 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 con- duct 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 collec- tors to retrieve the defendants’ trash and search it, uncover- ing 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 con- sider their garbage to be private and deem it highly improper for others—curious neighbors, ex-spouses, employers, oppo- nents 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., dis- senting), 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 testi- fied 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-en- forcement 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 dam- ages. 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 effec- tive 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 dis- pute 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 prop- erty 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, defen- dant had no “right to privacy” in files that were located on the laptop, because defendant no longer owned the lap- top. 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 pass- words,” during the time frame of the criminal activity; inter- net browsing history; and records of communication. The Supreme Court has recently explained that “Oregonians enjoy a right to privacy [under Article I, sec- tion 9,] in their internet communications, even when access- ing 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 com- puter 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 defen- dant 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 constitu- tional 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 pub- lic 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 ser- vices, 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 lap- top, 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 serv- ers owned by internet service providers. That information can then be generated and accessed by hand-carried per- sonal 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 unreason- able 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 fail- ures 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 sim- ply 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 prop- erty can relinquish that interest by abandoning the prop- erty. 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 constitution- ally protected interests in the affected property.” Bunch, 305 Or App at 69. “It is the state’s burden to prove by a pre- ponderance 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 aban- doned their Article I, section 9, interest: • Actions taken by the police in relation to the prop- erty (e.g., whether they lawfully requested defen- dant 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 con- trol 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 “loca- tion 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-par- ty’s servers? See United States v. Hunt, 153 F4th 858, 865 (9th Cir 2025) (holding the Fourth Amendment’s “reason- able expectation of privacy framework” requires adapting the abandonment doctrine in light of the “unique character- istics of cellphone data” and concluding that “the abandon- ment doctrine can apply to cellphone data but courts should analyze the physical phone and its data separately to deter- mine 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 multi- ple ‘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 undoubt- edly 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) (advo- cating 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 inter- ests in digital data must be exceedingly clear, to overcome such strong privacy interests in an “essential” facet of mod- ern life.6 Put together, we conclude that the state did not meet its burden to demonstrate that defendant intention- ally 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 affir- matively 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 inac- tion 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 lap- top 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 dif- ferent 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 (follow- ing 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 aban- donment, 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 require- ment. State v. Bonilla, 358 Or 475, 486, 366 P3d 331 (2015). “When the state relies on consent, it must prove by a prepon- derance 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 deter- mining 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 vio- lated”). “That is the risk of cotenancy.” State v. Gonzalez- Coria, 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 prop- erty 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 dig- ital 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 defen- dant’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 girl- friend 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 exter- nally from the laptop. 756