The Oregon Court of Appeals reversed an Oregon man's rape convictions, finding that prosecutors improperly seized a handwritten manuscript from his jail cell without a warrant.

Kenneth Everett Moore was arrested on six counts of rape when his step-daughter, identified under the pseudonym "H," reported that he had been sexually abusing her since she was twelve.

While confined in jail pending trial, Moore allowed a cellmate to read a book manuscript he was working on. Moore claimed that the 224-page handwritten document, entitled "Voices in the Dark," was a fictional account of a Mafia hitman named Danny Moris. "In the manuscript, Danny married a woman named Trim or Tina, whom he met through a Nickel advertisement. Tina has a daughter named H from a previous marriage. The characters move from Portland to Medford to Fort Klamath, where H reports Danny for sexual abuse. Danny takes his two boys to Nevada during the ensuring investigation and later moves to Coos Bay," the court noted.

After reading the manuscript, the cellmate alerted police that it contained information about Moore's crime. At the request of a detective, a jail supervisor searched Moore's entire cellblock for the manuscript. The manuscript was found on a desk in Moore's cell. Most of it was in an unmarked white envelope, but a few pages were loose on the desk. The supervisor seized the entire manuscript without a warrant and gave it to the prosecutor.

Moore moved to suppress the manuscript, arguing that the warrantless seizure violated the Oregon and United States Constitutions. The trial court denied the motion. Citing State v. Tiner, 340 Or 551, 135 P.3d 305 (2006), the court found that prisoners like Moore have no expectation of privacy in their jail cells or the items therein.

The prosecution used the manuscript to impeach Moore's testimony, the court noted. Although Moore testified on direct examination that the manuscript was a work of fiction, on cross-examination "he admitted . . . that some of the incidents were based on actual events. For example, he acknowledged that he met his wife, Tina, through a Nickel advertisement; that Tina had a child named H from a previous marriage; that he and his family moved from Portland to Medford to Fort Klamath, where H alleged that she had been sexually abused; that he took his two boys to Nevada during the sexual abuse investigation; and that he later moved to Coos Bay." The State argued that the book was actually Moore's life story.

The prosecution also offered handwriting samples from the book to prove that Moore was the author of a handwritten note that H's mother gave authorities. That document, entitled "secrets," stated that "Some of the things (the child) says are true." The jury convicted Moore and he was sentenced to 28 years in prison.

The Oregon Court of Appeals reversed, rejecting the State's reliance on Tiner and State v. Sanders, 343 Or 34, 163 P.3d 607 (2007), for the proposition that prisoners have no privacy interests in their cells. Noting that the Defendants in those cases were convicted felons but Moore was a pretrial detainee, the court relied, instead, upon State v. Hartman, 238 Or App 582, 243 P3d 480 (2010), adhered to on recon., 241 Or App 195, 248 P.3d 448 (2011), to conclude that the warrantless seizure of the manuscript violated the Oregon Constitution. See: State v. Moore, 260 Or App 303, 317 P.3d 293 (2013).

Additional Source: The Oregonian

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