State v. Fristoe

• Decision Date: 20 May 2021
• Docket Number: No. 2 CA-CR 2019-0064,2 CA-CR 2019-0064
• Court: Arizona Court of Appeals
• Parties: The STATE of Arizona, Appellee, v. Edgar FRISTOE, Appellant.

251 Ariz. 255

489 P.3d 1200

The STATE of Arizona, Appellee,

v.Edgar FRISTOE, Appellant.

No. 2 CA-CR 2019-0064

Court of Appeals of Arizona, Division 2.

Filed May 20, 2021

Mark Brnovich, Arizona Attorney General By Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix Counsel for Appellee

Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant

Presiding Judge Eppich authored the opinion of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred.

EPPICH, Presiding Judge:

¶1 Edgar Fristoe appeals from his convictions and sentences for ten counts of sexual exploitation of a minor under fifteen years of age, arguing Google LLC (Google) and the National Center for Missing and Exploited Children (NCMEC) violated his federal and state constitutional rights by searching his "Google+ Photos" account,¹ opening images of child pornography uploaded to his account, and sharing these images with law enforcement. He contends the trial court erred in failing to suppress evidence obtained as a result of that warrantless acquisition and use of these images. Because we conclude the private search doctrine applies, we affirm Fristoe's convictions and sentences.

Factual and Procedural Background

¶2 "In reviewing a trial court's decision on a motion to suppress, we view the facts in the light most favorable to upholding the trial court's ruling and consider only the evidence presented at the suppression hearing." State v. Teagle , 217 Ariz. 17, ¶ 2, 170 P.3d 266 (App. 2007).² In August and September of 2016, Google discovered nineteen images of child pornography in Fristoe's Google+ Photos account. At least one Google employee viewed eighteen of the nineteen images in Fristoe's account and determined they were child pornography. Additionally, the parties stipulated that the one image not viewed by a Google employee was child pornography. Google reported their findings to NCMEC and included the subscriber information in multiple cyber reports.³

¶3 NCMEC reviewed the reports, including all the images, and subsequently forwarded the information to the Phoenix Police Department. In November 2016, a Tucson Police Department detective used that information, among other things, to obtain a search warrant for Fristoe's home and cell phone. After executing the warrant, officers found several images of child pornography on Fristoe's phone.

¶4 The state charged Fristoe with fourteen counts of sexual exploitation of a minor (counts 1-14), one count of attempted luring of a minor (count 15), and one count of failing to register as a sex offender (count 16). Fristoe waived his right to a jury trial and proceeded with a bench trial. After a three-day trial, the trial court found Fristoe guilty of counts one through ten⁴ and sentenced him to ten terms of seventeen years’ imprisonment to be served consecutively.

¶5 Fristoe appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Motions to Suppress

¶6 Before trial, Fristoe filed a motion to suppress and an amended motion to suppress arguing the trial court should "suppress all evidence based on a warrantless search by government actor Google and all following evidence being fruit of the poisonous tree." Fristoe conceded that Google was a private entity but argued that it had acted as a "limited purpose government agent" when it searched through his Google+ Photos account and reported the child pornography, requiring a warrant. Specifically, Fristoe argued Google was acting as a government agent because it (1) faced substantial monetary losses and fines if it did not report child pornography, (2) was motivated to cooperate with law enforcement, and (3) was "inexplicably intertwined [with the federal government] in their pursuit of removal of child pornography from Google's servers." He also argued the image associated with count eleven should independently be suppressed because only NCMEC had opened that image and NCMEC was a government actor.

¶7 In response, the state argued, among other things, that there were no constitutional violations because Google had searched Fristoe's account as a private actor—not as an agent of the government. The state contended that Google was not acting as a government agent because (1) it faced fines only if it failed to report child pornography, not if it failed to search for it and (2) it was motivated to search for this illicit material for its private interests. The state also reasoned that even if NCMEC were a government actor, there was no constitutional violation for the image associated with count eleven because NCMEC's search did not expand on Google's searching as a private actor, and the search could "reveal nothing but contraband."

¶8 At the suppression hearing, the police detective who had obtained the warrant to search Fristoe's home and cell phone testified, and the parties largely repeated the arguments from their motions. The trial court denied Fristoe's motion to suppress "for the reasons stated in the State's motion" and expressly stated, "Google is clearly not a state actor, based on what I've heard and read. They're just a private company that had a duty to report once they discovered it and they discovered it. So the motion to suppress is denied."

¶9 On appeal, Fristoe's arguments include that the trial court erred because Google and NCMEC were government agents, therefore the private search doctrine did not exempt them from conducting a search or seizure without a warrant under the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution.⁵ "We review the denial of a motion to suppress evidence for abuse of discretion, considering the facts in the light most favorable to sustaining the ruling." State v. Weakland , 246 Ariz. 67, ¶ 5, 434 P.3d 578 (2019) (quoting State v. Valenzuela , 239 Ariz. 299, ¶ 9, 371 P.3d 627 (2016) ). But we review alleged constitutional violations de novo. State v. Foshay , 239 Ariz. 271, ¶ 34, 370 P.3d 618 (App. 2016).

¶10 As a preliminary manner, Fristoe argues we should address article II, § 8 before we address the Fourth Amendment. We decline to do so and follow the lead of our supreme court which has addressed the Fourth Amendment first when deciding challenges under both the United States and Arizona constitutions. See, e.g. , State v. Mixton , 250 Ariz. 282, ¶¶ 10-12, 27, 478 P.3d 1227 (2021) ; State v. Hernandez , 244 Ariz. 1, ¶¶ 11-23, 417 P.3d 207 (2018) ; State v. Bolt , 142 Ariz. 260, 263-65, 689 P.2d 519 (1984).

Fourth Amendment to the United States Constitution

¶11 Fristoe argues that Google violated his rights under the Fourth Amendment because no warrant exception applied and it opened and shared the images in his Google+ Photos account with NCMEC, and indirectly with law enforcement, without a warrant. He contends that although Google is a private organization, it should be considered a government agent in this context in light of the government's knowledge "of and acquiesce[nce] in Google's intrusion into user's private files" and Google's intent to assist law enforcement.

¶12 The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Warrantless searches "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." State v. Dean , 206 Ariz. 158, ¶ 8, 76 P.3d 429 (2003) (emphasis added in Dean ) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Fourth Amendment protections, however, are "wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.’ " United States v. Jacobsen , 466 U.S. 109, 113-14, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States , 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)). "[A] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and ... such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully." Walter , 447 U.S. at 656, 100 S.Ct. 2395 ; State v. Weekley , 200 Ariz. 421, ¶ 16, 27 P.3d 325 (App. 2001). The rationale for this rule is that once the private actor has frustrated "the original expectation of privacy," there is no constitutional protection of "governmental use of the now-nonprivate information." Jacobsen , 466 U.S. at 117, 104 S.Ct. 1652.⁶

¶13 To determine whether a private party acted as a government agent in an illegal search, courts consider "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." United States v. Snowadzki , 723 F.2d 1427, 1429 (9th Cir. 1984) (quoting United States v. Miller , 688 F.2d 652, 657 (9th Cir. 1982) ); State v. Martinez , 221 Ariz. 383, ¶ 31, 212 P.3d 75 (App. 2009). The defendant bears the burden of proving a private party acted as a government agent, United States v. Reed , 15 F.3d 928, 931 (9th Cir. 1994), and "[i]f either element of this test is not met, then the private citizen was not acting as a [government] agent," Martinez , 221 Ariz. 383, ¶ 31, 212 P.3d 75.

¶14 Fristoe has not met his burden of showing Google was acting as a government agent. First, Fristoe has not alleged that law enforcement asked Google or knew Google was going to search his particular account. Cf. United States v. Cameron , 699 F.3d 621, 628, 637-38 (1st Cir. 2012) (not government agent when law enforcement had no role in instigating or participating in the search of defendant's Yahoo! account when an...