State v. Gustafson

The Court will consider five factors in its evaluation to determine whether a reasonable inference exists that the evidence will be where the affidavit suggests: "(1) the length of time; (2) the 'perishability' versus the durability 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 evidence.'" State v. Van Osdol, 290 Or App 902, 909 (2018) (quoting State v. Ulizzi, 246 Or App 430, 438-39 (2011)). 

Defendant appealed a judgment convicting him of 11 counts of Sexual Abuse in the First Degree; 21 counts of Encouraging Child Sexual Abus in the First Degree; and one count of Unlawful Possession of Cocaine. Defendant assigned error to the trial court's denial of his motion to suppress the evidence supporting the sexual abuse convictions, which was found on two computers seized pursuant to a search warrant. On appeal, Defendant argued that the warrant was not supported by probable cause. The Court will consider five factors in its evaluation to determine whether a reasonable inference exists that the evidence will be where the affidavit suggests: "(1) the length of time; (2) the 'perishability' versus the durability 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 evidence.'" State v. Van Osdol, 290 Or App 902, 909 (2018) (quoting State v. Ulizzi, 246 Or App 430, 438-39 (2011)). The Court held that in addition to the Defendant's jail calls to his wife concerning his laptops, the affidavit also provided probable cause to believe that evidence of sexual abuse would be found on Defendant’s computers. Affirmed.