State v. Pharis

• Decision Date: 15 August 2014
• Docket Number: No. 2 CA-CR 2013-0560,2 CA-CR 2013-0560
• Parties: THE STATE OF ARIZONA, Appellee, v. MICHAEL LEE PHARIS, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. MICHAEL LEE PHARIS, Appellant.

No. 2 CA-CR 2013-0560

ARIZONA COURT OF APPEALS DIVISION TWO

August 15, 2014

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20124228001

The Honorable Richard D. Nichols, Judge

AFFIRMED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Alan L. Amann, Assistant Attorney General, Tucson

Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender

By Rebecca A. McLean and Sarah Mayhew, Assistant Public

Defenders, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.

VÁSQUEZ, Judge:

¶1 Following a bench trial on stipulated facts, Michael Pharis was convicted of seven counts of sexual exploitation of a minor under the age of fifteen, two counts of child molestation, and seven counts of sexual conduct with a minor under the age of fifteen. The trial court sentenced Pharis to a combination of concurrent and consecutive, presumptive prison terms totaling 366 years. On appeal, Pharis argues the court erred by denying his motion to suppress evidence. He also contends his sentences for sexual exploitation of a minor under the age of fifteen violate his right against cruel and unusual punishment. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining Pharis's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In November 2012, D.S., Pharis's then girlfriend, became suspicious of Pharis's relationship with his former girlfriend, S.S. Pharis and S.S. have a child together, A.P., who was four years old at the time. D.S. used the "lost password" function on Dropbox to obtain and send a temporary password for Pharis's account to his e-mail, which he had left open on her laptop.¹

Using the temporary password, D.S. opened Pharis's Dropbox account, where she saw "multiple video images of [Pharis] performing sexual acts on [A.P.]"

¶3 After telephoning S.S., D.S. took her laptop to S.S.'s house to show her the videos. However, D.S. was unable to show them because S.S. did not have an internet connection. D.S. then returned home with her laptop and called the police. While waiting for the officers to arrive, D.S. became concerned that Pharis "would become suspicious and delete the images from his Dropbox account." Consequently, she downloaded the seven videos from Pharis's Dropbox account to her laptop's hard drive.

¶4 When the officers arrived, they noticed D.S.'s laptop on the couch, displaying a paused video showing a man's torso. The officers asked D.S. to show them the videos, and D.S. resumed playing the video that was already open. Officers then obtained a search warrant for the residence and seized D.S.'s laptop. During a subsequent interview with officers, Pharis admitted to committing sexual acts with A.P., beginning in October 2012, and to recording those encounters.

¶5 Before trial, Pharis filed a motion to suppress, asserting that "all evidence, including but not limited to videos and statements, collected as a result of the state's unauthorized intrusion into [his] Dropbox account, be suppressed." He maintained that D.S. had "acted as a state agent when she hacked into [his] account at the [officers'] request to view the evidence," thereby violating his constitutional right to privacy. After hearing argument, the court denied the motion, finding Pharis had failed to make a prima facie case for a constitutional violation because there had been no state action.

¶6 Pharis waived his right to a jury trial and stipulated to the facts of the case. The trial court found him guilty as charged and sentenced him as described above.² This appeal followed. We havejurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Motion to Suppress

¶7 Pharis argues the trial court erred by denying his motion to suppress. We review the denial of a motion to suppress evidence for an abuse of discretion. State v. Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d 1181, 1182 (App. 2011). However, we review a trial court's legal conclusions de novo. State v. Moran, 232 Ariz. 528, ¶ 8, 307 P.3d 95, 99 (App. 2013).

Initial Search

¶8 Pharis contends he "had an actual and reasonable expectation of privacy in his Dropbox account" and D.S. had no authority to search his Dropbox files. He further maintains that his Fourth Amendment privacy rights were violated when D.S. showed the officers the videos downloaded from his Dropbox account because that constituted an unreasonable, warrantless search.

¶9 The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. United States v. Jacobsen, 466 U.S. 109, 113 (1984); State v. Weekley, 200 Ariz. 421, ¶ 16, 27 P.3d 325, 328 (App. 2001). "Warrantless searches are 'per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'" Mazen v. Seidel, 189 Ariz. 195, 202, 940 P.2d 923, 930 (1997), quoting Katz v. United States, 389 U.S. 347, 357 (1967).

¶10 However, the Fourth Amendment "is 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 governmental official.'" Jacobsen, 466 U.S. at 113, quoting Walter v. United States, 447 U.S. 649, 662 (1980). And, under the private-search exception, "a police view subsequent to a search conducted by private citizens does not constitute a 'search' within the meaning of the Fourth Amendment so long as the view is confined to the scope and product of the initial search." United States v. Bomengo, 580 F.2d 173, 175 (5th Cir. 1978); see also Jacobsen, 466 U.S. at 114-15.

¶11 For example, in Jacobsen, employees of a private freight carrier removed several layers of wrappings from a damaged package and observed a white powdery substance inside plastic bags. 466 U.S. at 111. After replacing the package as they had found it, the employees notified the Drug Enforcement Agency. Id. The first agent to arrive similarly removed the wrappings and saw the white powder. Id. He then opened the plastic bags, removed a trace of the substance, and tested it. Id. at 111-12. The test confirmed the substance was cocaine. Id. at 112. Agents obtained a warrant to search the location where the package was addressed to be sent. Id. Once there, they arrested the defendants, who were charged with possessing an illegal substance with intent to distribute. Id. The defendants filed a motion to suppress, arguing the warrant was the product of an illegal search and seizure, but the motion was denied. Id.

¶12 On appeal, the Supreme Court concluded the Fourth Amendment did not require the first agent to obtain a warrant before opening the package and removing the substance for testing. Id. at 124-26. The Court pointed out that "[t]he initial invasions of [the defendants'] package were occasioned by private action." Id. at 115. And, it noted that "[t]he additional invasions of [the defendants'] privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search." Id. The Court observed that "[o]nce frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information." Id. at 117. Addressing each step of the agent's search, the Court found no Fourth Amendment violation. Id. at 122-25.

¶13 Similarly, here, the initial search of Pharis's Dropbox account was occasioned by private action. Acting of her own accord, D.S. obtained a temporary Dropbox account password, had it sent to Pharis's e-mail left open on her laptop, and accessed his Dropbox account, where she saw the videos.³ She then downloaded the videos to her laptop's hard drive. Because these invasions of Pharis's expectation of privacy were committed by a private party and not by state action, they did not violate the Fourth Amendment. See id. at 115.

¶14 Assuming the officers' request that D.S. show them the videos can be characterized as a search, that request did not exceed the scope of D.S.'s private search and therefore did not violate the Fourth Amendment. See id. at 117. D.S. had seen the videos on Pharis's Dropbox account and downloaded them to her laptop's hard drive. At that point, the videos were no longer private. See id. Although it is not clear whether the officers then viewed the videos from their location on Pharis's Dropbox account or on D.S.'s laptop, the videos nonetheless were the same ones D.S. had seen and downloaded. See id. ("The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.").

¶15 As the state points out, even if the officers watched the videos to a greater length or degree than D.S. previously had done, they did not exceed the scope of D.S.'s search because they were "already substantially certain of what [was depicted in the videos] based on the statements of [D.S.]" United States v. Runyan, 275 F.3d 449, 463 (5th Cir. 2001) ("[T]he police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties."); see also United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (same).

¶16 Pharis nevertheless contends "[t]he private search exception does not apply to the warrantless search of [his] Dropbox files" because D.S. acted as an agent of the state. ⁴ "Whether a private person acted as a state agent is 'a fact-intensive inquiry...