State v. Van Dyck
| Decision Date | 02 September 2021 |
| Docket Number | 2 CA-CR 2019-0156 |
| Parties | The State of Arizona, Appellee, v. Ryan Galal Van Dyck, Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20143891001 The Honorable Javier Chon-Lopez, Judge The Honorable Howard Fell Judge Pro Tempore
Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee
The Moss Law Firm
By Vanessa C. Moss, Tucson
and
Law Office of Emily Danies
By Emily Danies, Tucson
Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
¶1 Ryan Van Dyck appeals from his convictions and sentences for twenty counts of sexual exploitation of a minor under fifteen. He contends the trial court erred in denying his motions to suppress evidence because (1) officers, without a warrant, opened an image attached to an email forwarded to them; (2) officers obtained his subscriber information without a warrant; and (3) the warrant used to search his home was based on stale probable cause, obtained with false information, and executed past the permissible statutory period. He also contends that his twenty consecutive ten-year prison terms totaling 200 years' imprisonment violate his constitutional right to be free from cruel and unusual punishment. For the following reasons, we affirm Van Dyck's convictions and sentences.
¶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. Fristoe, 251 Ariz. 255, ¶ 2 (App. 2021) (quoting State v. Teagle, 217 Ariz. 17, ¶ 2 (App. 2007)). In March 2014, AOL Inc. reported to the National Center for Missing and Exploited Children (NCMEC) that it had discovered an email with the subject line "Re: trade" with an image attached that "appeared] to contain child pornography." After determining the general location of the IP address, NCMEC subsequently forwarded the information to the Arizona Internet Crimes Against Children's task force in April.
¶3 Officers viewed the image attached to the email, confirmed it was child pornography, and, in May, subpoenaed the internet service provider (ISP), which provided subscriber information for a business located at Van Dyck's home address. On September 3, officers obtained a search warrant for Van Dyck's home. On September 8, an officer applied for, and was granted, an extension to execute the warrant. As a result of executing the search warrant on September 9, officers discovered "at least hundreds of images that were child porn." Additionally, during the execution of the warrant, Van Dyck admitted to possessing and distributing child pornography over several years.
¶4 In July 2015, Van Dyck filed a motion to suppress the evidence obtained as a result of a search warrant of his home, asserting, among other things, that the information supporting probable cause for the warrant was stale. He also asserted that the affidavit contained false information to support the warrant extension because despite representations that Van Dyck would be out of town during the original deadline to execute the warrant, he was, in fact, in town. At the suppression hearing, the trial court denied the motion, concluding there was probable cause to support the warrant even if certain information was removed from the affidavit, but not specifically addressing the allegations of false information related to the extension.
¶5 In January 2017, Van Dyck and similarly situated defendants collectively asserted that the state's violation of the grand jury subpoena statute required suppression of evidence. The trial court rejected that argument, concluding, in part, that the defendants did not have a reasonable expectation of privacy in their IP addresses or subscriber information under either the United States or Arizona Constitutions.
¶6 In March 2019, relying, in part, on a hearing transcript from a related federal proceeding in which the warrant executed on September 9 was discussed, Van Dyck filed a supplemental motion to suppress. He contended that since his July 2015 motion "significant facts regarding the conduct of the [officers had] been discovered and clarified and new case law ha[d] emerged" requiring suppression. He asserted that he had a reasonable expectation of privacy in his subscriber information held by his ISP and in his email communications and that the opening of the image unconstitutionally violated his reasonable expectation of privacy or alternatively was a trespass on a constitutionally protected thing. The trial court held a suppression hearing on the motion and subsequently denied the motion to suppress because Van Dyck "did not maintain a reasonable expectation of privacy on the internet after he violated the AOL Terms of Service."
¶7 After a bench trial, Van Dyck was convicted and sentenced as described above. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶8 Relying on our prior opinion in State v. Mixton, 247 Ariz. 212, ¶¶ 27, 38-39 (App. 2019), Van Dyck asserts on appeal that the trial court should have granted his motions to suppress because he had a reasonable expectation of privacy in his IP address and subscriber information, officers did not have a search warrant to obtain his subscriber information from his ISP, and the good-faith exception did not apply here, as it did in Mixton.
¶9 However, while this appeal was pending, our supreme court vacated our opinion in Mixton and concluded that under both the United States and Arizona constitutions, a search warrant is not required to obtain this information. State v. Mixton, 250 Ariz. 282, ¶¶ 53, 75, 77 (2021) (no reasonable expectation of privacy in an IP address and ISP subscriber information). Accordingly, Van Dyck has not established error, and we need not consider the good-faith exception because it only applies when there is error. See id. ¶¶ 75-77.
¶10 On appeal, Van Dyck appears to again assert that a warrant was legally required for the officers to view the image sent to them by NCMEC, and thus the trial court erred in denying his 2019 motion to suppress. The state argues Van Dyck has waived review of this issue because he has not adequately developed his argument on appeal. We agree.
¶11 State v. Moody, 208 Ariz. 424, n.9 (2004) (quoting State v. Carver, 160 Ariz. 167, 175 (1989)). In his opening brief, Van Dyck does not challenge the trial court's conclusion that he had no reasonable expectation of privacy in the image, but instead assumes, without explanation, that a warrant was required. See State v. Blakely, 226 Ariz. 25, ¶ 6 (App. 2010) (subject to exceptions, a warrant is required if there is a reasonable expectation of privacy in the thing to be searched).
¶12 Moreover, Van Dyck cites no legal authority supporting his position. See Ariz. R. Crim. P. 31.10(a)(7) (appellant's opening brief must provide "supporting reasons for each contention" and "citations of legal authorities"). He only cites the general principle that "[a]ny incriminating material seized as a result of an illegal search must be suppressed." Wong Sun v. United States, 371 U.S. 471, 491-92 (1963). Although he further develops this argument in his reply brief, we do not consider it. Cf. State v. Brown, 233 Ariz. 153, ¶ 28 (App. 2013) (); see also 5 Am. Jur. 2d Appellate Review § 481 (2021) (). Accordingly, his argument that the court erred in denying his motion to suppress due to the warrantless viewing of the image is waived on appeal. See State v. Johnson, 247 Ariz. 166, ¶ 13 (2019) ().
¶13 On appeal, Van Dyck renews his argument that the probable cause supporting the warrant to search his home was stale. He asserts that because officers waited until September to obtain the search warrant and there was "no evidence of continuous activity; the tip from AOL was based on a single email containing a single item of suspected contraband," the trial court should have granted his motion to suppress. The state responds that despite the five-month gap, the warrant was not stale because the affidavit detailed "why additional images may have been found despite the delay." We review the denial of a motion to suppress for an abuse of discretion, but review the legal determination of probable cause de novo. State v. Goudeau, 239 Ariz 421, ¶ 26 (2016).
¶14 "No search warrant shall be issued except on probable cause." State v. Adamson, 136 Ariz. 250, 257 (1983); see also A.R.S. § 13-3913. Probable cause exists if "a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected...
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