State v. MacHardy
| Decision Date | 10 November 2022 |
| Docket Number | 2 CA-CR 2021-0021 |
| Citation | 83 Arizona Cases Digest 9,521 P.3d 613 |
| Parties | The STATE of Arizona, Appellee, v. Brian Matthew MACHARDY, Appellant. |
| Court | Arizona Court of Appeals |
Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Jacob R. Lines, Assistant Attorney General, Tucson, Counsel for Appellee
Apfel Law Group, Phoenix, By Seth Apfel, Counsel for Appellant
¶1 Brian MacHardy appeals his convictions and sentences for nine counts of sexual exploitation of a minor. He argues law enforcement illegally searched his computer, the trial court erred by denying his motion to suppress, and the state failed to present sufficient evidence that actual minors were depicted in the materials he possessed. He also contends the court improperly enhanced his sentences and challenges the sufficiency of his waiver of a jury trial. For the following reasons, we affirm.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Brock , 248 Ariz. 583, ¶ 3, 463 P.3d 207 (App. 2020). In August 2019, MacHardy was indicted on nine counts of sexual exploitation of a minor, each a dangerous crime against children. The indictment alleged that between May 2017 and April 2018, MacHardy had knowingly downloaded, possessed, or electronically transmitted visual depictions of a minor under the age of fifteen engaged in an exploitative sexual act, a class two felony under A.R.S. § 13-3553(A)(2), (C).
¶3 After a bench trial, MacHardy was convicted as charged. The trial court sentenced him to nine ten-year terms of imprisonment, with all counts running consecutively, as required by A.R.S. § 13-705(N). This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶4 In September 2017, Dan Barry, a detective in the Internet Crimes Against Children section of the Tucson Police Department, used software to monitor the unlawful transfer of previously identified child sexual abuse files over BitTorrent, a peer-to-peer file sharing network. The software identified thirty-one suspicious videos and partial videos originating from a single internet protocol (IP) address for which MacHardy was the subscriber. The subsequent search of MacHardy's residence, conducted pursuant to a search warrant, and police interview with MacHardy led to his indictment.
¶5 At the hearing on MacHardy's motion to suppress, Detective Barry, the only digital forensic analyst who testified regarding the investigative software, offered testimony that was ambiguous as to whether the software searched MacHardy's entire computer or was restricted to searching only files MacHardy had shared on BitTorrent. Perhaps as a result, the trial court did not make a clear finding regarding what the software had searched.
¶6 MacHardy argues, for the first time on appeal, that officers violated his right to privacy as protected by the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution when they operated the software "not available to the general public to conduct a warrantless search of [his] computer" that identified him as possessing sexually exploitative files. Specifically, he argues the software conducted a search of his entire "computer," rather than only files he affirmatively shared on BitTorrent. And because the search of his computer was "accomplished using technology not available to the general public," he contends Kyllo v. United States , 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), controls the issue.1 Because MacHardy did not raise this issue with the trial court, we review only for fundamental, prejudicial error. State v. Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 (2018).
¶7 If, as MacHardy argues, the software searched the entire contents of his computer, rather than just the files located in a shared folder, such a search would arguably require a warrant under our state and federal constitutions. See Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2217, 201 L.Ed.2d 507 (2018) (); Minnesota v. Olson , 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (); State v. Ault , 150 Ariz. 459, 466, 724 P.2d 545 (1986) (). However, as MacHardy concedes, warrantless searches into content shared on peer-to-peer networks are constitutionally permissible because "by knowingly using a file sharing network," users maintain "no reasonable expectation of privacy in the files accessible on that network." State v. Welch , 236 Ariz. 308, ¶¶ 9-11, 340 P.3d 387 (App. 2014) ; see also State v. Mixton , 250 Ariz. 282, ¶ 14, 478 P.3d 1227 (2021) (); see also United States v. Ganoe , 538 F.3d 1117, 1127 (9th Cir. 2008) ().
¶8 Here, because MacHardy failed to object or otherwise clarify the extent of the investigative software's reach, the record before us is inconclusive and inadequately developed on this central factual issue. Thus, MacHardy has not satisfied the first step in fundamental error analysis—demonstrating that trial error occurred. See State v. Henderson , 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601 (2005) ; Escalante , 245 Ariz. 135, ¶ 13, 425 P.3d 1078. It is not our role as a reviewing court to make factual findings. See State v. Klos , 248 Ariz. 40, ¶ 10, 455 P.3d 739 (App. 2019). We therefore conclude MacHardy has failed to meet his burden under Escalante and Henderson to establish fundamental error.
¶9 MacHardy also argues the trial court erroneously declined to suppress statements he made during an interview following what he characterizes as a warrantless arrest inside his home in April 2018. On the morning of MacHardy's arrest, the United States Marshals Service served a search warrant on MacHardy's residence. They detained MacHardy, "placed him in handcuffs, and removed him from the second-floor apartment." Detective Barry testified this was "normal practice for officer safety during executions of search warrants." While the Marshals "secured" the residence, MacHardy "remained handcuffed and detained at the first-floor landing of the stairwell away from the apartment." When Detective Barry asked if he was willing to talk, MacHardy agreed. Detective Barry took him to a police vehicle—a reformatted city bus—with an enclosed interview area equipped with a padded bench and a table and read him his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). MacHardy sat there, still handcuffed, for the duration of the interview, which lasted less than an hour. During the interview, MacHardy made several incriminating statements, including admitting to possessing images and videos of "prepubescent" children engaged in sexual acts with adults.
¶10 MacHardy moved to suppress these statements, but he specifically noted that the initial in-home detention was "perfectly valid" and did not transform into an illegal arrest until sometime after he was removed from his residence. On appeal, MacHardy notes "the trial court's ruling is unclear as to precisely when arrest occurred, finding only that [he] was under arrest at the time he provided his statement" on the bus. He also argues the arrest lacked probable cause and illegally occurred "inside his home," where the Marshals had "handcuffed him and forcibly removed him, taking him down the stairs from his apartment to another area, where he remained handcuffed and detained." Although parties’ arguments may evolve, to some extent, on appeal, see Yee v. City of Escondido , 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992), MacHardy's argument that the initial detention was improper because it constituted an arrest inside his apartment directly contradicts the position he took before the trial court. As a result, the factual predicate for his argument on appeal that the detention inside his apartment was improper was not developed. Therefore, that component of MacHardy's argument is forfeited, and we address it only for fundamental, prejudicial error. See Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 ; Henderson , 210 Ariz. 561, ¶ 19, 115 P.3d 601.
¶11 "Whether a probable cause determination comports with the Fourth Amendment is a mixed question of law and fact that we review de novo." State v. Morris , 246 Ariz. 154, ¶ 10, 435 P.3d 1060 (App. 2019). However, we defer to the trial court's factual findings, "including whether witnesses were credible and whether the inferences drawn by a police officer were reasonable." Id.
¶12 MacHardy has shown no error. Probable cause for a warrantless arrest exists if "the facts and circumstances within the knowledge of the arresting officer at the time were sufficient to warrant a man [or woman] of reasonable caution to believe that a felony had been committed by the person arrested." State v. Edwards , 111 Ariz. 357, 360, 529 P.2d 1174, 1177 (1974) ; see also A.R.S....
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