State v. Gustafson , 300 Or. App. 438 ( 2019 )

438
Argued and submitted July 27, 2017, affirmed November 6, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
RICHARD BRIDGEMAN GUSTAFSON,
Defendant-Appellant.
Deschutes County Circuit Court
14FE0032; A159489
452 P3d 962
In this criminal case, defendant appeals from a judgment convicting him of,
among other things, 21 counts of first-degree encouraging child sexual abuse.
Defendant assigns error to the trial court’s denial of his motion to suppress the
evidence supporting those convictions, which was found on two computers seized
pursuant to a search warrant. Defendant asserts, among other challenges, that
the warrant was not supported by probable cause. Held: The affidavit provided
probable cause to believe that evidence of sexual abuse would be found on defen-
dant’s computers.
Affirmed.
Wells B. Ashby, Judge.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Richard Bridgeman Gustafson filed the
supplemental brief pro se.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hadlock, Judge pro tempore.
POWERS, J.
Affirmed.
Cite as 300 Or App 438 (2019) 439
POWERS, J.
In this criminal case, defendant appeals from a
judgment convicting him of 11 counts of first-degree sexual
abuse, ORS 163.427; 21 counts of first-degree encouraging
child sexual abuse, ORS 163.684; and one count of posses-
sion of cocaine, ORS 475.884. Defendant assigns error to the
trial court’s denial of his motion to suppress the evidence
supporting his convictions for encouraging child sexual
abuse, which was found on two computers seized pursu-
ant to a search warrant.1 Defendant asserts, among other
challenges, that the warrant was not supported by proba-
ble cause.2 We conclude that the affidavit provided proba-
ble cause to believe that evidence of sexual abuse would be
found on defendant’s computers. Accordingly, we affirm.
The warrant at issue on appeal is the second war-
rant issued during the investigation of defendant. The rel-
evant facts are those recited in the affidavit of Bend Police
Officer Russell, which was submitted in support of the appli-
cation for that warrant. See State v. Webber, 281 Or App 342,
343, 383 P3d 951 (2016) (relevant facts are those recited in
the affidavit).
The affidavit recites information about allegations
by four young girls that, during sleepovers at Acrovision
Sports Center in Bend, defendant, a gymnastics coach at
Acrovision, had touched them inappropriately. The first two
victims disclosed the touching to their parents on January 1,
2014, shortly after coming home from a New Year’s sleepover.
1
We reject without discussion defendant’s other assignments of error, includ-
ing those he raises in a pro se supplemental brief.
2
Defendant also argues that the warrant did not comply with the require-
ments that the Supreme Court established in State v. Mansor, 363 Or 185, 421
P3d 323 (2018), for warrants to search electronic devices based on the concepts
of specificity and overbreadth, which inform the analysis of whether a warrant
is sufficiently particular under Article I, section 9, of the Oregon Constitution.
We conclude, however, that defendant did not preserve that argument. Although
defendant characterized the warrant as “overly broad” in his argument before
the trial court, he used that term to summarize his argument that there was no
probable cause to seize any of his computers; he did not challenge the warrant as
insufficiently particular. As explained below, we understand defendant’s argu-
ment both before the trial court and on appeal as one that asserts there was no
probable cause to search any device, not one asserting that the warrant allowed
the search of too many devices.
440 State v. Gustafson
They were interviewed at the KIDS center, a child abuse
intervention center, and recounted the following informa-
tion. At the sleepover, defendant slept upstairs in the loft
area of Acrovision with a group of around 12 children. He
invited the victims to sleep upstairs. During the night,
defendant pulled one victim out of her sleeping bag and
pulled her on top of his chest. When she tried to move off
of him, he pulled her back onto him, and he kissed the
top of her head. He also lay down next to another victim
and touched her under her clothing on her breasts and
vagina.
A few days later, the mother of the first victim
made a recorded telephone call to defendant, during which
he denied that he had slept in the loft area; he said that he
had slept in his office, which was also upstairs at Acrovision.
Less than an hour after the recorded telephone call, defen-
dant called the first victim’s mother back. He told her
that the children had chosen where they slept during the
sleepover. He also said that he had fallen asleep in the main
area upstairs, not his office, and that there were no chil-
dren there when he fell asleep. He said that, later, he had
woken up surrounded by children and moved to his office.
He also said, referring to the sleepovers, “We’ve done this for
years.”
While collecting the victims’ clothing and sleeping
bags as evidence, Russell learned that one of the victims
had smelled like men’s cologne when she returned from the
sleepover.
Russell and another officer spoke with defendant,
first at Acrovision and then at the police department, on
January 8, 2014. Defendant said that approximately eight
children had slept in the loft during the sleepover and
that he had fallen asleep around 12:30 a.m. in the main
area of the loft with no children around him. He woke up
at 4:00 a.m. and found that there were eight or nine chil-
dren sleeping in the area, at which point he moved to his
office. Later in the morning, after 7:00 a.m., he went to the
restroom and lay down with the children upon his return.
Russell arrested defendant on charges of first-degree sexual
abuse and coercion.
Cite as 300 Or App 438 (2019) 441
A few days later, two more victims came forward
and were interviewed at the KIDS center. They recounted
the following information. Defendant touched the first of
the two during a sleepover at Acrovision around Halloween
2013. She was one of the children that was picked to sleep
upstairs during that sleepover. During the night, defendant
put his hand down her pants and “humped” her through
her sleeping bag, and he also touched other girls who were
sleeping upstairs. The second victim attended a sleepover at
Acrovision in 2012. Defendant invited her to sleep upstairs.
During the night, defendant startled her by breathing in
her ear and then rubbed her leg from bottom to top.
Russell also interviewed a former employee of
Acrovision who had been employed there as receptionist
between 2002 and 2005. She reported that, while she worked
at Acrovision, there was a desktop computer set up just
outside defendant’s office in the loft area. Employees were
allowed access to the computer. Defendant’s wife discovered
pornography on the computer, and defendant blamed it on
two staff members. The staff members were upset because
they were not responsible for it. Other employees took
that computer home to do video splicing, but they quickly
returned it because there was pornography popping up on it
continually. Defendant said that the pop-ups were created
by a service called Limewire, which he had used to down-
load music.
The former employee also told Russell the following:
“[O]nce she heard about the ‘Limewire’ excuse [defen-
dant] had given she became increasingly curious and went
upstairs to check the computer out for herself. [She] told
me she has illegally downloaded music from Limewire and
never had an issue with pornography popping up after
using the service. While checking the computer’s files and
internet browsing history out she located some photographs
which were saved in a file on the desktop of the computer.
The photographs were of young girls dressed in leotards.
[The employee] said the photos concerned her because they
did not show the gymnast’s face and started at the shoul-
ders and went only down to the knees. [She] said the girls
had ‘very tight’ leotards on that were cut very high on the
hips. [The employee] said that it then dawned on her that
442 State v. Gustafson
defendant could have been taking photos of the girls at the
gym and cropping their heads and legs out of the photos
for his own sexual pleasure. [The employee] told me [defen-
dant] was always taking photos and videos of the gymnasts
at Acrovision and she always assumed it was for business
promotion purposes.”
Russell averred that he knew that Limewire is a
peer-to-peer network and that peer-to-peer networks “are
most commonly used by people downloading child pornog-
raphy.” He also averred that he knew, based on his training
and experience, “that people who are involved in the sex-
ual abuse of children have almost always began [sic] their
addiction by viewing child pornography. I also know peo-
ple involved in the sexual abuse of children continually feed
their addiction by viewing child pornography.”
Finally, the affidavit recounted the content of tele-
phone calls that defendant made to his wife from jail. During
the first call, defendant’s wife told him that the police had
taken computers from Acrovision (during the execution of
the first warrant, which is not at issue on appeal). Defendant
asked her if they had taken his laptop, and she responded
that his laptop case was still there. During another call two
days later, defendant asked his wife to “make sure the com-
puter at the gym can be at home so I can make sure I have
it when I get out so I can be able to get all the taxes done.”
Based on the affidavit, a magistrate issued a war-
rant that authorized the police to search defendant’s home
and Acrovision, as well as two vehicles, for, as relevant here,
“[u]nknown brand laptop with or without a laptop case used
by [defendant];” “[p]hotographs of young girls in leotards,
specifically cropped photos from the subject’s neck to their
knees;” and “[s]till photo cameras requiring film, digital
still photo cameras, digital video recorders, video recorders
requiring tapes, other media storage devices capable of stor-
ing digital photos and video recordings of female gymnasts
in leotards.”
Pursuant to that warrant, the police seized, among
other things, a desktop computer from defendant’s home
and his laptop from Acrovision. During subsequent searches
of the two computers, officers found the files that formed
Cite as 300 Or App 438 (2019) 443
the basis for the charges of encouraging child sexual abuse.3
Eleven of those files were on the laptop, and 11 were on the
desktop. The two sets of files were the same, and one set
could have been copied from the other. The files had “last
accessed” and “last modified” dates showing that they
had been created and viewed at different times on the two
computers.
Before trial, defendant sought suppression of the
items seized during and evidence derived from the execution
of the second warrant.4 In a written opinion, the court held
that the images described by the former employee—cropped
images of the torsos of young gymnasts wearing very tight,
high-cut leotards—were subject to seizure even though the
pictures were not unlawful in and of themselves. The court
considered the age of the former employee’s information in
a “staleness” analysis and concluded that, even though the
information was old, it could still be relied on by a magis-
trate to support probable cause. The court ultimately held
that there was probable cause to believe that evidence of
sexual abuse would be found on the digital devices identified
in the warrant.
On appeal of his subsequent convictions, defen-
dant contends that the affidavit does not demonstrate that
there would probably be material subject to seizure on
defendant’s digital devices. Specifically, he contends that
(1) the information provided by the former employee is too
old to establish probable cause to believe that there would
be seizable material on devices he owned when the warrant
issued and (2) Russell’s averments based on his training
and experience do not provide probable cause. Defendant
does not challenge the reliability of the information
recounted in the affidavit. Defendant also does not argue
3
After they initially found evidence of child pornography on the laptop, the
officers obtained another warrant—the third warrant of the investigation—
to allow the search of both computers. Defendant did not raise any argument
regarding that warrant before the trial court and, likewise, it is not at issue on
appeal.
4
Defendant initially challenged the first warrant. During the hearing, he
asked the court to consider his motion to apply to the second warrant instead,
because that warrant was the one that yielded the evidence. The court agreed
to do that, and, as explained below, it analyzed the facts regarding the second
warrant in its written opinion.
444 State v. Gustafson
that, even if the search of some of his electronic devices
was supported by probable cause, the warrant nevertheless
allowed the search of too many devices. That is, defendant’s
argument—both below and on appeal—is that there was
no probable cause to search any device, and that the trial
court erred in concluding otherwise. Defendant does not
dispute that items “probative of defendant’s sexual interest
in children” were properly subject to seizure under these
circumstances.
In reviewing a trial court’s determination that
there was probable cause to issue a warrant, “we examine
the facts in the supporting affidavit in a commonsense, non-
technical and realistic fashion, looking at the facts recited
and the reasonable inferences that can be drawn from those
facts.” State v. Chase, 219 Or App 387, 391-92, 182 P3d 274
(2008) (internal quotation marks omitted). Our task is “to
determine, as a matter of law, whether [the affidavit] per-
mits a conclusion by a neutral and detached magistrate that
the items specified in the warrant will probably be found in
a specified place to be searched.” Id. at 392 (internal quota-
tion marks omitted). Our standard of probability “requires
less than a certainty, but more than a mere possibility” that
the items will be found in one of the specified places. Id.
Finally, in adhering to the probable cause requirement, “we
resolve doubtful or marginal cases in favor of the preference
for warrants.” State v. Henderson, 341 Or 219, 225, 142 P3d
58 (2006).
We begin by considering Russell’s averments that
“people who are involved in the sexual abuse of children
have almost always began [sic] their addiction by viewing
child pornography” and that “people involved in the sexual
abuse of children continually feed their addiction by view-
ing child pornography.” Although knowledge based on a
law enforcement officer’s training and experience is among
the circumstances that we consider in evaluating probable
cause, we have noted that “we must not only ensure that the
officer’s knowledge is connected to the facts of a particular
case; we must also examine the knowledge itself.” State v.
Daniels, 234 Or App 533, 540, 541, 228 P3d 695, rev den, 349
Or 171 (2010).
Cite as 300 Or App 438 (2019) 445
As the information that the officer provides “becomes
more esoteric, specialized, counter-intuitive, or scientific,
increasingly persuasive explanation is necessary. The
extent to which an officer must explain the basis of his or
her ‘training and experience’ knowledge, in other words,
varies from case to case across a broad spectrum.” Id. at
542. Some knowledge is so common that little or no training
or experience is necessary to support it. Id. (explaining that,
at one end of the spectrum, knowledge that “a person who
stole property is likely to keep it at his or her home” requires
no support). Esoteric, specialized, counter-intuitive, or scien-
tific knowledge “requires more of a foundation than the bare
assertion of training and experience.” Id. (providing, as an
example of such specialized knowledge, “the fact that anhy-
drous ammonia is a precursor chemical used in the manu-
facture of methamphetamine and that a brass fitting that
has been in contact with that substance will turn blue”).
Here, the affidavit recites that Russell has been a
police officer for nine years, has received more than 1,827
hours of specialized training—but not the topics of that
training—and, during his employment as a police officer,
has “personally conducted investigations in the area of
Sexual Abuse involving minors.” We question whether that
recitation adequately supports his averments about the
relationship between child sexual abuse and child pornog-
raphy, which are assertions of specialized knowledge about
what sexual abusers “almost always” and “continually” do.
Russell’s recitation of his training identifies no training in
the habits of sexual abusers, and his recitation of his experi-
ence investigating sexual abuse of children does not suggest
that he would have gained detailed knowledge of the rela-
tionship between child sexual abuse and child pornography
from numerous or in-depth investigations. Cf. Daniels, 234
Or App at 541-43 (averment that pedophiles often own and
retain deviant movies was sufficiently explained by the offi-
cer’s 24 years of law enforcement experience, advanced train-
ing in sexual abuse of children, familiarity with the methods
of operation of people committing those crimes, investigation
of numerous allegations of sexual abuse of children while
working at several different law enforcement agencies, and
interviews of numerous child victims and perpetrators).
446 State v. Gustafson
However, we need not, and do not, decide whether
Russell’s averments about the habits of sexual abusers of
children contribute to the probable cause determination.
That is so because, as explained below, we conclude that,
even in the absence of those averments, the affidavit pro-
vided probable cause to believe that photographs or videos
demonstrating defendant’s sexual interest in children would
be found on his digital devices.
We begin from the proposition, which, as noted
above, defendant does not challenge, that items probative of
defendant’s sexual interest in children are among the items
that could be seized pursuant to a warrant under these
circumstances. Likewise, defendant does not dispute that
the photographs of the torsos of young gymnasts in very
tight, high-cut leotards are such items. The former employ-
ee’s information demonstrated that those items existed in
the past. She also provided the information that defendant
had frequently photographed and videotaped gymnasts at
Acrovision in the past.
Defendant contends that information from which a
magistrate could infer that he had photographed gymnasts
at Acrovision and cropped those photographs in a way that
allowed him to use them for sexual pleasure between 2002
and 2005 did not give rise to probable cause to believe that
items probative of defendant’s sexual interest in children
would be on his laptop or digital devices in early 2014. He
contends that nothing in the affidavit allows an inference
that defendant still owned the same computer or that he
would have transferred the photos of the gymnasts to any
new computer.
When an affidavit contains information about cir-
cumstances that existed in the past, we must determine
“whether, given the time between the event described [in the
affidavit] and the issuance of the warrant, there is a reason-
able inference that the evidence will be where the affidavit
suggests.” State v. Young, 108 Or App 196, 204, 816 P2d 612(1991), rev den, 314 Or 392 (1992). That evaluation “depends
upon all the circumstances.” State v. Kirkpatrick, 45 Or App
899, 903, 609 P2d 433, rev den, 289 Or 337 (1980). We gen-
erally consider five factors to assist with that evaluation:
Cite as 300 Or App 438 (2019) 447
“(1) the length of time; (2) the ‘perishability’ versus the dura-
bility of the item; (3) the mobility of the evidence; (4) the
‘nonexplicity inculpatory character’ of the evidence; and
(5) the ‘propensity of an individual suspect or general class
of offenders to maintain and retain possession of such evi-
dence.’ ” State v. Van Osdol, 290 Or App 902, 909, 417 P3d
488 (2018) (quoting State v. Ulizzi, 246 Or App 430, 438-39,
266 P3d 139 (2011), rev den, 351 Or 649 (2012)).
Here, the length of time between the former employ-
ee’s discovery of the photographs of gymnasts and the issu-
ance of the warrant is long—approximately 10 years. In
some circumstances, that lapse of time would prevent a
determination of probable cause. See, e.g., State v. Corpus-
Ruiz, 127 Or App 666, 670, 874 P2d 90 (1994) (information
that a suspect had used heroin at a house six months before
the warrant was issued did not give rise to probable cause to
believe that heroin would still be at the house at the time of
issuance). As noted above, however, the analysis is entirely
circumstance specific and the goal is to ascertain whether
it is reasonable to infer that the items, or, in this case, the
same or similar items, will probably be found in the speci-
fied place.
Considering the second, third, and fifth factors
together, we conclude, as explained below, that digital photo-
graphs are durable and, although they are mobile, in this
case, that mobility was likely limited to the devices encom-
passed in the warrant. Moreover, and most importantly,
although we do not consider any express statements about
the propensity of individuals like defendant to keep that
type of evidence, the totality of the circumstances here
allows a strong inference that defendant would have kept
the photographs or created more similar evidence.
Before turning to those factors, however, we briefly
note that we conclude that the fourth factor, whether the
evidence was explicitly inculpatory, is not particularly help-
ful to our analysis here. The reasoning behind that factor
is that, if the evidence is not explicitly inculpatory, an actor
may be more likely to keep it. See Ulizzi, 246 Or App at 438-
39 (citing cases to that effect). Here, the photographs that the
employee saw were not explicitly inculpatory—they could be
448 State v. Gustafson
passed off as related to publicity photos for the business—
but they did allow a viewer to infer, like the former employee
did, that defendant was sexually interested in young gym-
nasts. Given the nature of the photographs in this case, the
fourth factor is not helpful to our analysis.
We return to our consideration of the second, third,
and fifth factors, beginning with the second and third—the
perishability of the evidence and its mobility. Although, as
defendant points out, the affidavit lacks information describ-
ing typical computer use, that does not preclude drawing
inferences from the affidavit that are a matter of common
sense. See Henderson, 341 Or at 225 (“[E]ven without [the
affiant’s] statements about his experience, we think that the
magistrate could rely on his own common sense and draw
reasonable inferences from [the affiant’s] information about
the rings and about defendant.”). As the trial court noted,
digital photographs are inherently durable, as opposed to
perishable or subject to being used up, like user amounts
of drugs. Compare id. (observing that diamond rings are
“nonperishable items of high value that would be easy to
conceal, that retain their value, and that some people might
find attractive to keep for personal use”) with Corpus-Ruiz,
127 Or App at 670 (“Heroin is a substance that has a rela-
tively long shelf life, but can be consumed in a short period
of time and is easily moved.”).
It is true that, as defendant points out, the affi-
davit does not reveal whether defendant still owned the
same computer that he had when the former employee saw
the photographs, and the computer on which the former
employee had found the photographs was a desktop, while
the warrant included defendant’s laptop. It is also true,
however, that digital photographs can be copied from one
device to another. Although Russell did not specifically aver
as much in his affidavit, that type of knowledge is a matter
of common sense. See Henderson, 341 Or at 225 (noting that
a magistrate can “rely on his [or her] own common sense
and draw reasonable inferences” about where the defen-
dant would probably keep the evidence). Thus, we need not
assume that, merely because the electronic devices to be
seized in the search may not include the one on which the
Cite as 300 Or App 438 (2019) 449
employee saw the photographs, the photographs themselves
must have been discarded or deleted.
Digital data is certainly mobile evidence, a fact that
generally weighs against continuing probable cause. Under
these particular circumstances, however, we conclude that
the mobility of the photographs is probably limited to the
group of devices of which the warrant allowed a seizure:
media storage devices at defendant’s home or workplace or
in his vehicles that are “capable of storing digital photos
and video recordings of female gymnasts in leotards.” That
is, if defendant moved the photographs, it was likely only
to another of his devices. Thus, despite their mobility, the
photographs, if defendant retained them, were likely to be
found in one of the places to be searched.5
Considering it, as we are, without Russell’s aver-
ments based on his training and experience, the affidavit
lacks information about the fifth factor, the propensity of
individuals like defendant to keep that type of evidence.
However, it is possible to draw inferences from facts in the
affidavit itself about the likelihood that evidence will be
kept. See Henderson, 341 Or at 225.
Here, the facts in the affidavit allow a strong infer-
ence that defendant would have kept the photographs or
produced more: The photographs evidenced defendant’s sex-
ual attraction to young gymnasts between 2002 and 2005
and show that, at that time, he used his business as a means
of obtaining access to gymnasts for sexual purposes. The
affidavit contains abundant information, in the form of mul-
tiple allegations of sexual abuse at Acrovision, that allow an
inference that, when the warrant issued, defendant was still
sexually attracted to young gymnasts and that he continued
to use his business as a means of obtaining access to them.
The information in the affidavit, taken together and includ-
ing defendant’s statement that he had run sleepovers at the
gym “for years,” permits an inference that defendant’s use
of his business for access to young gymnasts at Acrovision
5
As noted above, defendant does not argue that the warrant allowed the
seizure of too broad a group of devices, and he did not preserve any challenge
under Mansor. We express no opinion on whether the same analysis would apply
if defendant had raised either of those arguments.
450 State v. Gustafson
for sexual purposes continued from the time the former
employee found the photographs until the warrant issued.
And defendant’s concern about his laptop, expressed to his
wife in the jail phone calls, suggests that his continuing use
of his business to allow him access to gymnasts for sexual
purposes still included his computers as well. Given all of
that, a magistrate could infer that, despite the time between
the employee’s viewing of the photographs and the issuance
of the warrant, defendant’s computers would still contain
the same or similar photographs.
Because the information in the affidavit demon-
strated that seizable things would probably be found on
defendant’s digital devices, the trial court did not err in
denying defendant’s motion to suppress.
Affirmed.