Monday, September 01, 2014

The iPad, the Wake and Aggravated Burglary

After a jury convicted Jeremy Jones Davis of “aggravated burglary and theft”, he appealed, “alleging the evidence was insufficient as a matter of law.”  State v. Davis, 2014 WL 3928597 (Court of Criminal Appeals of Tennessee 2014).  After he was convicted, the trial judge sentenced Davis to “six years for the C felony of aggravated burglary, and four years for the D felony theft conviction, to run consecutive for an effective sentence of ten years.” State v. Davis, supra.
The Court of Criminal Appeals began its analysis of Davis’ argument by explaining what evidence was presented at his trial:
Marty Dean testified that he and his wife left home about 2:30 in the afternoon to attend the wake of their thirty-five year old daughter who had died of cancer. They returned home about 10:00 pm with relatives to discover their house had been broken into, and numerous items stolen.

He discovered all his guns and knives had been stolen. Included was a family heirloom shotgun that had been in his family for a hundred years or more, and other shotguns, rifles and pistols. His knife collection included several pocket knives that had been given to him for Father's Day and birthdays by his children. All his wife's jewelry had been stolen; and the laptop computer and iPad were missing.
State v. Davis, supra.
The court notes that the
iPad and laptop were recovered; as were three knives and a small amount of jewelry. [Dean] estimated the value of his lost property to be in excess of twenty-five thousand dollars.
State v. Davis, supra.
As to the crime itself, the Court of Criminal Appeals went on to explain that the
house had been entered by prying a door open. The wake was public knowledge and there were many people there, including all of his family. [Dean] testified he did not know [Davis], and did not give him permission to enter his house.

Brenda Dean testified that when they returned from the wake she discovered all her jewelry had been stolen. She detailed the jewelry, to include four diamond rings, diamond earrings, other rings, pearls, necklaces, gold items, and some costume jewelry. Some of the jewelry had been her mother's. She estimated the value of the missing jewelry to be in excess of twenty thousand dollars.

Timothy Pringle testified that he knew the Deans and attended the wake. A couple of days later [Davis] came to his house and requested if he could help take some information off an iPad and put it to `factory reset.’ [Davis] offered a laptop to him if he would reset the iPad. When he turned the iPad on to begin the reset, he saw a photo of Heather Dean, whose wake he had attended. 

He questioned [Davis], who told him he participated in the aggravated burglary of a house that was supposed to be an `easy score,’ during a wake. [Davis] was to be the look-out while two others went into the house to get guns and jewelry. [Davis] stated he went in the house and got what he could for himself, to include the iPad and laptop.

After [Davis] left his house, Mr. Pringle called Mitchell Dean, brother of deceased Heather Dean. Mitchell came to his house, and Pringle showed him the laptop and told him what he had been told by [Davis]. Mr. Pringle had activated the security feature on the iPad so it could be tracked to its location. Mr. Pringle reported to the police what he knew and that he was trying to get the iPad back on his own.

Clyde Ragsdale testified that he works for the Lewisburg City Police Department. His department was investigating the aggravated burglary of the Dean residence. He was with other officers who executed a search warrant on [Davis’] residence. He patted [Davis] down and found a knife in one of his pockets, which was later identified as a knife stolen from the Dean residence.

James Johnson testified he is a detective with the Lewisburg Police Department and executed a search warrant on [Davis] at his residence. He found an iPad with the same serial number as reported stolen from the Dean residence.
State v. Davis, supra.  The opinion also notes that Davis “did not submit any proof to the jury.”  State v. Davis, supra.
The Court of Criminal Appeals then began its analysis of Davis’ argument on appeal, i.e., that the evidence presented at trial was not sufficient to prove his guilt beyond a reasonable doubt.  State v. Davis, supra.  It noted, initially, that the standard for
appellate review when a criminal defendant challenges the sufficiency of the evidence is `whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ State v. Reid, 91 S.W.3d 247 (Tennessee Supreme Court 2002); see also Tennessee Rules of Appellate Procedure13(e) (`Findings of guilt in criminal actions . . .  shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.’).

The trier of fact, not this court, resolves questions concerning the credibility of witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence. State v. Elkins, 102 S.W.3d 578 (Tennessee Supreme Court 2003). This court may not re-weigh the evidence nor substitute its inferences for those drawn by the jury. State v. Evans, 108 S.W.3d 231 (Tennessee Supreme Court 2003).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Dorantes, 331 S.W.3d 370 (Tennessee Supreme Court 2011). A verdict of guilty removes the presumption of innocence and replaces it with a presumption of guilt, placing the burden on the accused to demonstrate why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913 (Tennessee Supreme Court 1982).
State v. Davis, supra. 
The Court of Criminal Appeals then began its analysis of Davis’ sufficiency of the evidence challenge, explaining that
[a]ggravated burglary is a burglary of `a habitation.’ Tennessee Code Annotated § 39–14–403(a). In order to sustain a conviction for aggravated burglary, the State need only prove that a defendant entered a habitation `with intent to commit a felony, theft.’ Tennessee Code Annotated § 39–14–403.

A person commits a `theft’ when, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent, Tennessee Code Annotated § 39–14–103(a). . . .
State v. Davis, supra. 
The court rather cursorily disposed of Davis’ argument on appeal:
The facts in this case show that [Davis] admitted he entered the victim's home to get what he could for himself, to include an iPad and a laptop. He was found in possession of the victim's stolen iPad, and a stolen knife that belonged to the victim.

There was ample proof from which the jury could find that [Davis] intended to deprive the owner of the property. He traded the victim's stolen laptop for computer services of cleaning the iPad of the victim's information. He kept the iPad for his personal use, and had a stolen knife that belonged to the victim in his pocket.

The court finds that considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of aggravated burglary and theft beyond a reasonable doubt.
State v. Davis, supra. 
On appeal, Davis also argued that the sentence imposed on him was excessive. State v. Davis, supra.  In addressing this issue, the court explained that the 2005 amendments to
the sentencing act `served to increase the discretionary authority of trial courts in sentencing.’ State v. Bise, 380 S.W.3d 682, 708 (Tennessee Supreme Court 2012). In light of this broader discretion, `sentences should be upheld so long as the statutory purposes and principles, along with any applicable enhancement and mitigating factors, have been properly addressed.’ State v. Bise, supra.

Therefore, this court reviews a trial court's sentencing determinations under `an abuse of discretion standard of review, granting a presumption of reasonableness to within-range sentencing decisions that reflect a proper application of the purposes and principles of our Sentencing Act.’ State v. Bise, supra.
State v. Davis, supra. 
Since the sentences imposed on Davis were “within-range sentences,” the Court of Criminal Appeals explained that “our review is abuse of discretion.” State v. Davis, supra.  It also explained that under the 2005 amendments to the state’s sentencing act, a trial judge “must consider the following when determining a defendant's specific sentence and the appropriate combination of sentencing alternatives”:
 (1) The evidence, if any, received at the trial and the sentencing hearing; (2) The presentence report; (3) The principles of sentencing and arguments as to sentencing alternatives; (4) The nature and characteristics of the criminal conduct involved;(5) Evidence and information offered by the parties on the mitigating and enhancement factors set out in §§ 40–35–113 and 40–35–114; (6) Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) Any statement the defendant wishes to make in the defendant's own behalf about sentencing. Tennessee Code Annotated § 40–35–210(b).
State v. Davis, supra. 
The Court of Criminal Appeals found, first, that the record of the case showed that the
trial court fully considered the factors in Tennessee Code Annotated section 40–35–210. The trial court considered the evidence and the nature of the conduct involved and discussed the tragedy of a daughter's wake while the victim's house was being burglarized; he referred to the pre-sentence report and discussed the prior record of [Davis]; he discussed the enhancing factors found; he noted no evidence or information was offered on mitigating factors; and the defendant did not make a statement in his own behalf. [Davis] has failed to show an abuse of discretion with regard to the sentence imposed for the crimes.
State v. Davis, supra. 
Finally, the Court of Criminal Appeals pointed out that the trial judge “determined that” Davis “has an extensive criminal record” and went on to explain that Tennessee Criminal Code Annotated § 40-35-225 allows for consecutive sentencing if the judge finds by a preponderance of the evidence that the “defendant is an offender whose record of criminal activity is extensive”.  State v. Davis, supra. 
The court therefore found that Davis
had a prior felony conviction for aggravated burglary, and seven misdemeanor convictions. He was on probation seven times in the past, and had been revoked twice. He had been tried on community corrections and was revoked. [Davis] has failed to show an abuse of discretion for consecutive sentencing.

[Davis] was eligible for probation because the `sentence actually imposed upon [him was] ten (10) years or less.’ Tennessee Code Annotated § 40–35–303(a). The trial court considered probation and found that the presumption in favor was `overcome in a very dramatic way.’

The defendant has the burden of showing the impropriety of the sentence on appeal. Tennessee Code Annotated § 40–35–401(d), Sentencing Comm'n Comments. [Davis] has not carried his burden. We find no abuse of discretion by the trial judge in the sentence imposed.

State v. Davis, supra.  For all these reasons, the court affirmed Davis’ convictions and sentence. State v. Davis, supra. 

Friday, August 29, 2014

Text Messages, Hearsay and Attempting to Promote Prostitution

After John Elwood Causey, Jr. was convicted of “attempting to promote prostitution” in violation of Oregon Revised Statutes § 167.012(1)(d)”, he appealed.  State v. Causey, 2014 WL 4100645 (Court of Appeals of Oregon 2014).
According to the Court of Appeals’ opinion, this is how the prosecution arose: 
On May 4, 2010, Officer Miller was working undercover as a decoy on a prostitution sting in Portland. While Miller was at a bus stop, Foster and her passenger, [Causey], drove up to Miller and asked her if she needed a ride.
 Miller recorded the conversation that ensued between Miller, Foster, and [Causey]. Based on her training and experience, Miller concluded [Causey] was trying to recruit her to work as a prostitute.
 Miller contacted officers Hertzler and Kula, who were also in the area, and they subsequently arrested [Causey] on the charge of promoting prostitution. During the arrest, Hertzler seized a cell phone from [Causey’s] pocket. Kula also seized two cell phones from the vehicle Foster was driving, one of which he later determined belonged to Foster.
 After obtaining a search warrant, Kula searched all three phones. He discovered a series of text messages between [Causey] and Foster, as well as text messages between [Causey] and a second woman and pictures of women in suggestive poses. The pictures led Kula to an escort service website which contained pictures of Foster in suggestive poses.
State v. Causey, supra.
At Causey’s trial, the prosecution “introduced the following text-message exchanges between [him] and Foster”.  State v. Causey, supra.
March 10, 2010
Foster: `I'm at Chestnut Tree Hotel, Room 16. Call when done[.]’
[Causey]: `Gotcha, Mama.’
Foster: `This guy's late. How long should I wait for this guy before I give up?’
[Causey]: `Chill at the bar for about 15 minutes. Then give him a call. Have a drink or two.’
Foster: `We never exchanged numbers. We've only been talking through email here and there. I just ordered a shot. If he's not here by 1:30, I'll call you. If you're at your mom's maybe try checking my email and seeing if he sent me anything.’
Foster: `He just got here. I'll call you.’
[Causey]: “Run him for that.”
Foster (approximately 30 minutes later): `I'm ready to go in five minutes.’

April 28, 2010
Foster (after informing [Causey] that she is in room 110): `Just finished. He's getting dressed. The hotel bitch is being nosey. How long before you're here?’
[Causey]: `About 15 minutes.’

May 2–3, 2010
Foster (after informing [Causey] she is in room 235): `He's here.’
Foster (early the next morning): `I can go if you're ready to [come] get me. I'm about to get dressed now.’
State v. Causey, supra.  At the trial, “Kula testified that he believed that the content of the text messages clearly showed a pimp/prostitute relationship.” State v. Causey, supra.  
On appeal, Causey argued, among other things, that the trial judge erred in admitting “text messages from two women that were recovered from [his] cell phone" because they were hearsayState v. Causey, supra.  
According to Causey, “the admission of the text messages violated [his] confrontation rights under Article I, section 11, of the Oregon Constitution.”  State v. Causey, supra.  The Court of Appeals noted that, “[u]nder the usual paradigm,” it would first consider Causey’s “constitutional claims only if it is necessary to do so”.  State v. Causey, supra.
The Court of Appeals began its analysis of Causey’s first argument by explaining that
[OregonEvidence Code] 801(3) states, ‘”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”’ The reason for the statutory exclusion is that hearsay statements are generally considered to be untrustworthy. State v. Cazares–Mendea/Reyes- Sanchez, 350 Or 491, 256 P3d 104 (Oregon Supreme Court 2011).

As noted above, the state's argument is that the text messages from Foster were admissible because they were not offered by the state for the truth of the matter asserted but instead offered only to prove that [Causey] had knowledge of Foster's prostitution activities.
State v. Causey, supra.
The Court of Appeals rejected the prosecution’s
argument for the following reasons. Although the text messages may have indicated that [Causey] had knowledge of Foster's activities, in order for him to have that knowledge, the content of those text messages had to be true. Although the state did not need to prove that Foster was at a particular time and place charging a man $500 for her services, the state did need to prove that Foster was meeting a man for sex in exchange for money.

The text messages are relevant because they are circumstantial evidence of an `act or enterprise of prostitution’ required under Oregon Revised Code §167.012(l)(d). For the text messages to be relevant as circumstantial evidence, however, the jury was required to accept the truthfulness of the content of those messages. The relevance was not that the statements were made, but the content of the statements.
State v. Causey, supra.
It also explained that
[i]n addition, the text messages were then used by the state as the basis for Kula's expert opinion testimony that the messages were `highly consistent and indicative of a pimp/prostitute relationship.’ In order for Kula to testify to that opinion, Kula had to accept the truthfulness of the content of the text messages.

In fact, the judge commented that the state `had to prove an enterprise, don't they?’ More importantly, in order for the jury to accept Kula's opinion and make a similar inference, the jury had to accept the truthfulness of the content of the text messages.
State v. Causey, supra.
The Court of Appeals therefore held that
[b]ecause the text messages were out-of-court statements and their relevance depended on the truth of the content of the messages, the messages were hearsay and not admissible. The trial court erred in admitting the text messages, and that error requires that we reverse and remand for a new trial.
State v. Causey, supra.  In two footnotes appended, respectively to each of the above sentences, the Court of Appeals noted, first, that the prosecution did “not argue that the text messages were admissible under any exception to the rule against hearsay.”  State v. Causey, supra.  You can, if you are interested, find a summary of the exceptions in this Wikipedia entry.
In the second footnote, the court explained that the prosecution did “not argue that the admission of the text messages was harmless error."  State v. Causey, supra.  In other words, as Wikipedia explains, the prosecution did not argue that the error in admitting the text messages did not, or cannot conclusively be determined not to have, influenced the outcome of the case, perhaps because that simply was not true. 
If you are interested, you can read a little more about the facts in the case in the news stories you can find here and here.


Wednesday, August 27, 2014

Child Molestation, Dropbox and the 4th Amendment

After “a bench trial on stipulated facts” in the Superior Court of Pima County, 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 judge sentenced him “to a combination of concurrent and consecutive, presumptive prison terms totaling 366 years.”  State v. Pharis, 2014 WL 4057721 (Arizona Court of Appeals 2014). Pharis appealed arguing, among other things, that the trial judge “erred by denying his motion to suppress evidence.”  State v. Pharis, supra
The Court of Appeals began its opinion by outlining how the prosecution arose:”
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.]’

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.

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.
State v. Pharis, supra
Before he went to trial, Pharis filed a motion to suppress, allegeing 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.
State v. Pharis, supra.  On appeal, Pharis argued, among other things, that the trial judge erred in denying his motion to suppress.  State v. Pharis, supra.  More precisely, he claimed
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 4rth 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.
State v. Pharis, supra
The Court of Appeals began its analysis of Pharis’ argument by noting that the
4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. v. Jacobsen, 466 U.S. 109 (1984). . . . `Warrantless searches are “per se unreasonable under the 4th Amendment -- subject only to a few specifically established and well-delineated exceptions.”’  Mazen v. Seidel, 189 Ariz. 195, 940 P.2d 923 (Arizona Supreme Court 1997), quoting Katz v. U.S., 389 U.S. 347 (1967).

However, the 4th 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.”’ U.S. v. Jacobsen, supra, quoting Walter v. U.S., 447 U.S. 649 (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 4th Amendment so long as the view is confined to the scope and product of the initial search.’ U.S. v. Bomengo, 580 F.2d 173 (U.S. Court of Appeals for the 5th Circuit 1978); see also U.S. v. Jacobsen, supra.

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. U.S. v. Jacobsen, supra.  After replacing the package as they had found it, the employees notified the Drug Enforcement Agency. U.S. v. Jacobsen, supra. The first agent to arrive similarly removed the wrappings and saw the white powder. U.S. v. Jacobsen, supra.  He then opened the plastic bags, removed a trace of the substance, and tested it. U.S. v. Jacobsen, supra.  The test confirmed the substance was cocaine. U.S. v. Jacobsen, supra.  Agents obtained a warrant to search the location where the package was addressed to be sent. U.S. v. Jacobsen, supra.  

Once there, they arrested the defendants, who were charged with possessing an illegal substance with intent to distribute. U.S. v. Jacobsen, supra.  The defendants filed a motion to suppress, arguing the warrant was the product of an illegal search and seizure, but the motion was denied. U.S. v. Jacobsen, supra.  

On appeal, the Supreme Court concluded the 4th Amendment did not require the first agent to obtain a warrant before opening the package and removing the substance for testing. U.S. v. Jacobsen, supra.  The Court pointed out that `[t]he initial invasions of [the defendants'] package were occasioned by private action.’ U.S. v. Jacobsen, supra.  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.’ U.S. v. Jacobsen, supra.  

The Court observed that `[o]nce frustration of the original expectation of privacy occurs, the 4th Amendment does not prohibit governmental use of the now-nonprivate information.’  U.S. v. Jacobsen, supra.  Addressing each step of the agent's search, the Court found no 4th Amendment violation. U.S. v. Jacobsen, supra.  
State v. Pharis, supra
The Court of Appeals then noted that
[s]imilarly, 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 4th Amendment. 
State v. Pharis, supra
The court went on to explain that 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 4th Amendment. See U.S. v. Jacobsen, supra.  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 U.S. v. Jacobsen, supra. 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 U.S. v. Jacobsen, supra.  (`The 4th Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.’).

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.]’ U.S. v. Runyan, 275 F.3d 449 (U.S. Court of Appeals for the 5th Circuit 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’). . . .
State v. Pharis, supra
Pharis, though, argued that
`[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 (Arizona Court of Appeals 2009) quoting U.S. v. Jarrett, 338 F.3d 339 (U.S.Court of Appeals for the 4th Circuit 2003). The defendant bears the burden of proving a private party acted as a state agent. U.S. v. Ellyson, 326 F.3d 522 (U.S. Court of Appeals for the 4th Circuit 2003); U.S. v. Reed, 15 F.3d 928 (U.S. Court of Appeals for the 9th Circuit 1994).

`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, 226 P.3d 407 (Arizona Court of Appeals 2010) see also U.S. v. Walther, 652 F.2d 788 (U.S. Court of Appeals for the 9th Circuit 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. State v. Garcia–Navarro supra quoting State v. Martinez, supra.
State v. Pharis, supra
The Court of Appeals then explained that in 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 U.S. v. Smythe, 84 F.3d 1240 (U.S. Court ofAppeals for the 10th Circuit 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. . . .

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 U.S. v. Shahid, 117 F.3d 322 (U.S. Court of Appeals for the 7th Circuit 1997) (even though private party may intend to assist law enforcement, he does not become state agent if he has legitimate, independent motivation). . . .  Accordingly, the trial court did not err in concluding D.S. was not acting as a state agent. . . .
State v. Pharis, supra
For these and other reasons, the court affirmed Pharis’ convictions and sentence. State v. Pharis, supra