Opinion
No. 2 CA-CR 2013-0560
08-15-2014
THE STATE OF ARIZONA, Appellee, v. MICHAEL LEE PHARIS, Appellant.
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
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NOT FOR PUBLICATION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. 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.]"
Dropbox provides online storage for electronic files, documents, photographs, and videos.
¶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. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The trial court's oral pronouncement at the sentencing hearing did not include the sentence imposed for count thirteen. However, according to the sentencing minute entry, the court imposed a presumptive, seventeen-year prison term on that count. The court's intent is therefore clear, based on the record before us, and we need not remand for clarification. See State v. Lopez, 230 Ariz. 15, n.2, 279 P.3d 640, 643 n.2 (App. 2012). Moreover, on appeal, Pharis has not challenged his sentence on this basis.
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. 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.
The trial court did not take evidence at the hearing on the motion to suppress because the relevant facts were undisputed. See State v. Nelson, 208 Ariz. 5, ¶ 4, 90 P.3d 206, 207 (App. 2004) (we consider only evidence presented at suppression hearing and do so in light most favorable to upholding ruling). On appeal, Pharis nonetheless contends it was disputed whether he "left his password-protected email account open, logged on, and viewable to anyone who happened to use . . . [D.S.]'s computer." But it is immaterial how D.S. accessed Pharis's e-mail. See Walter, 447 U.S. at 656 ("[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."); see also United States v. Ellyson, 326 F.3d 522, 527-28 (4th Cir. 2003).
¶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. "Whether a private person acted as a state agent is 'a fact-intensive inquiry that is guided by common law agency principles.'" State v. Martinez, 221 Ariz. 383, ¶ 14, 212 P.3d 75, 79 (App. 2009), quoting United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003). The defendant bears the burden of proving that a private party acted as a state agent. United States v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003); United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994).
Pharis also argues the trial court "erred as a matter of law" by finding D.S. "did not engage in misconduct when she stole [his] password and pretended to be him to gain access to his password-protected electronic files." However, the court never made any such finding. And, in any event, as stated above, the legality of D.S.'s conduct is immaterial to our constitutional analysis. See Walter, 447 U.S. at 656; Ellyson, 326 F.3d at 527.
¶17 "When determining whether a party acted as an agent of the state, this court looks to (1) whether the government had knowledge of and acquiesced to the party's actions and (2) the intent of the party." State v. Garcia-Navarro, 224 Ariz. 38, ¶ 6, 226 P.3d 407, 409 (App. 2010); see also United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981). "'If either element of this test is not met, then the private citizen was not acting as a state agent' and any fruit of the citizen's search or seizure may not be suppressed." Garcia-Navarro, 224 Ariz. 38, ¶ 6, 226 P.3d at 409, quoting Martinez, 221 Ariz. 383, ¶ 31, 212 P.3d at 84.
¶18 Applying the test here, we conclude D.S. was not acting as a state agent. Before the officers arrived, D.S. already had accessed Pharis's Dropbox account, viewed the videos, and downloaded them to her laptop's hard drive. She did so without any state knowledge or acquiescence. See United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir. 1996) ("[K]nowledge and acquiescence . . . encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action."). It was only after the officers arrived to D.S.'s residence that they asked her to show them the videos; by that time, D.S.'s private search was already complete. Cf. Jarrett, 338 F.3d at 346 (government's "entirely post-search" knowledge and acquiescence not sufficient for agency relationship).
¶19 Moreover, D.S.'s intent shows she was not acting as an agent of the state. D.S. opened Pharis's Dropbox account because she was suspicious of his relationship with S.S., not because she was trying to assist the police. Although her intent arguably changed when she downloaded the videos—fearing Pharis would delete them from his account—her initial motivation in the search was nonetheless personal. See United States v. Shahid, 117 F.3d 322, 326 (7th Cir. 1997) (even though private party may intend to assist law enforcement, he does not become state agent if he has legitimate, independent motivation); see also United States v. Grimes, 244 F.3d 375, 383 (5th Cir. 2001) (focusing on private parties' initial intent). Accordingly, the trial court did not err in concluding D.S. was not acting as a state agent. See Garcia-Navarro, 224 Ariz. 38, ¶ 6, 226 P.3d at 409.
¶20 Pharis also seems to suggest the private-search exception does not apply in Arizona because our constitutional protection is broader than the protection provided by the Fourth Amendment. "Our supreme court has held that Article 2, Section 8 of the Arizona Constitution provides greater privacy rights in a person's home than the Fourth Amendment." State v. Reyna, 205 Ariz. 374, n.5, 71 P.3d 366, 370 n.5 (App. 2003); see State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986); State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984). But this broader protection is limited to "cases involving 'unlawful' warrantless home entries." State v. Juarez, 203 Ariz. 441, ¶ 14, 55 P.3d 784, 787 (App. 2002). Here, we are concerned with a private search of an electronic device that was followed by a state search limited in scope to the earlier private search. And, because we aim "to keep the Arizona exclusionary rule uniform with the federal," Bolt, 142 Ariz. at 269, 689 P.2d at 528, we reject Pharis's argument.
Article II, § 8 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Search Warrant
¶21 Pharis also maintains the subsequently obtained "[s]earch [w]arrant was invalid" because it lacked sufficient particularity and the officer showed a reckless disregard for the truth in his search warrant affidavit. Accordingly, Pharis reasons that the evidence seized as a result of the warrant should have been suppressed. Search warrants are presumed valid, and the defendant bears the burden of proving otherwise. State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App. 2002); see also Ariz. R. Crim. P. 16.2(b) (defendant must "come forward with evidence of specific circumstances which establish a prima facie case that the evidence taken should be suppressed").
¶22 As a preliminary matter, we question whether Pharis sufficiently preserved this argument for appeal. See State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995) (argument not raised below waived for all but fundamental error). In his motion to suppress, Pharis stated in a footnote that he had not yet received a copy of the search warrant affidavit and that he reserved the right to challenge the truthfulness of its factual statements. See Franks v. Delaware, 438 U.S. 154, 171 (1978). Several weeks later, Pharis filed a supplement to his motion to suppress, arguing that the officer displayed a reckless disregard for the truth in the affidavit and also that the warrant itself lacked sufficient particularity. But, at the suppression hearing, the parties only discussed the issues raised in Pharis's original motion to suppress-that his right to privacy had been violated and D.S. was acting as a state agent when she searched his Dropbox account. The trial court repeatedly asked the parties what else it needed to address, but Pharis never raised his supplemental issues. Cf. State v. Mendiola, 23 Ariz. App. 251, 253, 532 P.2d 193, 195 (1975) (discussing duty to assist court and "not stand mute"). And, despite the potential factual disputes concerning the truthfulness of the officer's statements in the affidavit, defense counsel stated at the hearing, "I don't think that we're arguing about the facts." See Ariz. R. Crim. P. 16.2(b); Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d at 621.
¶23 In any event, we find Pharis's argument meritless. Pharis essentially is challenging the search and seizure of D.S.'s laptop. In order to challenge a search or seizure, a person must first show he had "'a legitimate expectation of privacy in the invaded place.'" Juarez, 203 Ariz. 441, ¶ 12, 55 P.3d at 787, quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978); see also Alderman v. United States, 394 U.S. 165, 174 (1969) ("Fourth Amendment rights are personal rights [and] . . . may not be vicariously asserted."). Here, it was undisputed that the laptop belonged to D.S., not Pharis. Pharis therefore did not have a legitimate expectation of privacy in the laptop, even though he may have used it in the past. Cf. Rakas, 439 U.S. at 148 (defendants had no "legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers"). And, although Pharis contends he had a legitimate expectation of privacy in his Dropbox account, as we discussed above, the videos already had been downloaded to D.S.'s laptop.
Sentencing
¶24 Pharis also maintains "[t]he sentencing scheme for sexual exploitation of a minor under the age of fifteen, punishable under A.R.S. §§ 13-705 and 13-3553(C), violates [his] right to be free from cruel and unusual punishment." As we understand his argument, Pharis is challenging his sentences for this offense. We review de novo whether a sentence constitutes cruel and unusual punishment. State v. Kasic, 228 Ariz. 228, ¶ 15, 265 P.3d 410, 413 (App. 2011).
Pharis also contends the sentencing scheme violates his right to equal protection of the law. Although he did not raise this argument below, Pharis nonetheless suggests it is not waived because imposition of an illegal sentence constitutes fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (issue not raised below reviewed for fundamental, prejudicial error). We agree. See State v. Alvarez, 205 Ariz. 110, ¶ 18, 67 P.3d 706, 712 (App. 2003). However, Pharis has not meaningfully addressed this argument on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall contain argument with "citations to the authorities, statutes and parts of the record relied on"); Bolton, 182 Ariz. at 298, 896 P.2d at 838 (failure to argue on appeal constitutes waiver of claim). We therefore do not address it further.
¶25 The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments." In a noncapital setting, the sentence imposed may not be "'grossly disproportionate' to the crime." State v. Berger, 212 Ariz. 473, ¶ 10, 134 P.3d 378, 380 (2006), quoting Ewing v. California, 538 U.S. 11, 20 (2003). In determining whether a sentence violates the Eighth Amendment, we employ a two-step analytical framework. Id. ¶ 11. First, we consider "if there is a threshold showing of gross disproportionality by comparing 'the gravity of the offense [and] the harshness of the penalty.'" Id. ¶ 12, quoting Ewing, 538 U.S. at 28 (alteration in Berger). "If this comparison leads to an inference of gross disproportionality, [we] then test[] that inference by considering the sentences the state imposes on other crimes and the sentences other states impose for the same crime." Id.
¶26 As Pharis points out, our supreme court previously has addressed the constitutionality of sentences imposed under §§ 13-705 and 13-3553(C). In Berger, the defendant was convicted of twenty counts of sexual exploitation of a minor under the age of fifteen. 212 Ariz. 473, ¶ 5, 134 P.3d at 380. Pursuant to §§ 13-705 and 13-3553(C), the trial court sentenced him to a ten-year prison term, the minimum sentence, for each of the twenty counts, totaling 200 years' imprisonment. Berger, 212 Ariz. 473, ¶ 6, 134 P.3d at 380. Applying the two-part framework, our supreme court upheld the sentences, finding that a ten-year prison term is not grossly disproportionate to the offense. Id. ¶ 29. In doing so, the court noted that the Eighth Amendment analysis focuses on the sentence for each offense individually and not on the cumulative sentence for all the offenses. Id. ¶ 28.
Berger discusses A.R.S. § 13-604.01, which was renumbered as § 13-705 in 2009. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 120.
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¶27 Here, the only difference is that Pharis received the presumptive, seventeen-year prison term, rather than the minimum, ten-year term, for each of his seven convictions for sexual exploitation of a minor under the age of fifteen, for a total of 119 years' imprisonment. Turning to the framework, for the same reasons discussed by our supreme court in Berger, we cannot say a seventeen-year sentence is grossly disproportionate to the offense. See id. ¶¶ 30-33. "'It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling.'" Id. ¶ 18, quoting Osborne v. Ohio, 495 U.S. 103, 109 (1990). And, a seventeen-year sentence "is consistent with the State's penological goal of deterring the production and possession of child pornography." Id. ¶ 33. Pharis's sentences for sexual exploitation of a minor under the age of fifteen therefore do not constitute cruel and unusual punishment under the Eighth Amendment. See Kasic, 228 Ariz. 228, ¶ 15, 265 P.3d at 413.
¶28 Pharis additionally argues that his sentences violate article II, § 15 of the Arizona Constitution, which, like the Eighth Amendment, prohibits "cruel and unusual punishment." He suggests that our state constitutional protection should extend beyond the protection afforded by the Eighth Amendment. However, as he concedes, this court recently pointed out that "our supreme court has declined to interpret our state constitutional provision more broadly than its federal counterpart." State v. McPherson, 228 Ariz. 557, ¶ 16, 269 P.3d 1181, 1187 (App. 2012). And as we said in that case, "[a]ny change in that approach would be in the exclusive purview of that court." Id. Because we are bound by the decisions of our supreme court, State v. Smyers, 207 Ariz. 317, n.4, 86 P.3d 370, 374 n.4 (2004), we reject Pharis's argument.
Disposition
¶29 For the foregoing reasons, we affirm Pharis's convictions and sentences.